MANUAL   OF  THE   CONSTITUTION 


USTITET)    STATES    OF    AMERICA. 


MANUAL 


CONSTITUTION 


UNITED  STATES  OF  AMERICA, 


BY   TIMOTHY   FARBAR. 

n 


Veritatem 

"  expellas  furca,  tamen  usque  recurret."  — HORACE. 

"Litera  scripta  manet." 


BOSTON: 
LITTLE,  BROWN,  AND  COMPANY. 

186T. 


Entered  according  to  Act  of  Congress,  in  the  year  1867,  by 

TIMOTHY  FARRAR, 
in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


CAMBRIDGE: 

STEREOTYPED    AND    PRINTED    BT 
JOHN  WILSON  AND  SON. 


To  MY  DAUGHTER : — 

The  beloved  memory  of  my  mother,  whose  name  you  bear ;  and 
of  your  son,  whose  name  was  mine,  and  that  of  my  venerated  father, 
who  aided  the  independence  and  constitution  of  his  country,  and 
taught  me  their  principles  ;  together  with  the  sympathy  and  encour- 
agement bestowed  by  yourself  and  husband  during  the  progress  of 
these  labors,  —  entitle  their  result  to  be  affectionately  inscribed  to 

ANNA  BANCROFT  FARRAR  CRANE. 


TO    THE 


STUDENT   OF   THE   CONSTITUTION. 


THE  formation  and  establishment  of  the  Ameri- 
can Union  constituted  the  origin  and  result,  the 
cause  and  the  effect,  the  beginning  and  the  end, 
of  the  American  Revolution.  By  that  Revolu- 
tion, the  British  Empire  was  divided  into  two 
(not  fourteen)  independent  nations.  The  Union 
first  arose  from  the  necessities  of  the  "  common 
defence."  "When  these  necessities  were  an- 
swered, it  was  found  that  international  relations, 
and  the  interests  of  commerce,  internal  and  exter- 
nal, were  scarcely  less  peremptory  in  their  claims 
to  a  similar  provision  for  the  "  general  welfare." 
The  emergencies  of  war  and  of  peace  had  thus 
united  in  demanding  "a  firm  national  govern- 
ernment,  .  .  .  adequate  to  the  preservation  of 
the  Union  and  the  exigencies  of  government;" 
and,  in  answer  to  that  demand,  the  people 
"ordained  and  established  this  Constitution  for 
the  United  States  of  America." 


Vlll  TO  THE   STUDENT  OF 

The  infancy  of  the  nation,  the  sparseness  of 
the  population,  the  severe  pressure  of  daily  toil, 
the  immaturity  of  our  institutions,  and  the  re- 
moteness of  neighbors,  afforded  a  favorable 
opportunity  for  trying  an  experiment  on  the 
minimum  of  government,  by  which  civil  society 
could,  under  any  circumstances,  be  maintained. 
The  subsequent  growth  of  the  nation,  the  expan- 
sion of  their  domains,  the  collisions  of  inter- 
course, the  complications  of  -business,  and  the 
alternations  of  peace  and  war,  at  home  and 
abroad,  demanded,  from  time  to  time,  a  corre- 
sponding change  in  the  operations  of  the  gov- 
ernment, and  an  adaptation  of  its  machinery  to 
constantly  recurring  new  "  exigencies." 

The  difference  between  a  community  of  three 
millions  of  people,  scattered  along  a  narrow  belt 
of  sea-coast,  inclosed  by  impenetrable  forests; 
and  thirty  or  forty  millions,  occupying  half  a 
continent,  and  pursuing  all  the  objects,  and  by 
all  the  arts  and  means,  which  the  reason  or  pas- 
sions, the  interest  or  ambition,  the  virtues  or 
vices,  of  men  could  invent,  —  must  soon  make 
itself  apparent  in  the  inevitable  development  of 
those  powers  of  regulation  which  were  expressly 
designed  and  intended  to  provide  for  just  such 
increasing  claims  for  their  exercise.  At  no 
period  of  our  history  has  the  trial  of  our  insti- 


THE   CONSTITUTION.  ix 

tutions,  and  their  adaptation  to  expand  with  the 
augmented  demands  of  a  great  and  increasing 
nation,  been  so  thoroughly  tested,  and  so  cau- 
tiously and  intelligently  accepted,  as  during  the 
late  civil  war,  which  can  hardly  yet  be  consid- 
ered at  an  end. 

It  was  in  the  midst  of  its  events,  and  with  a 
particular  view  to  the  practical  operation  of  our 
government,  under  all  the  varieties  of  its  cir- 
cumstances, and  to  the  principles  on  which  the 
questions  evolved  by  them  have  been  or  should 
be  decided,  that  this  treatise  has  been  compiled. 
Its  position  in  this  respect  is  different  from  any 
prior  exposition  of  the  Constitution.  The  results 
of  our  marked  experience  should  be  noted  and 
studied,  as  well  to  enable  us  to  trace  the  foot- 
steps of  Divine  Providence  in  the  development 
of  the  destinies  of  a  great  people,  as  for  the 
permanent  use  of  those  who  may  enjoy  the  fu- 
ture blessings  of  our  institutions.  In  the  hope 
of  exciting  the  diligent  attention  of  inquirers 
to  ascertain  and  understand  these  results,  the 
following  work  is  submitted  to  their  considera- 
tion. 

MOUNT  BOWDOIN, 
June,  1867. 


CONTENTS. 


CIIAPTEB  PAGB 

THE  CONSTITUTION 1 

I.    POSTULATE 27 

II.    THE  GOVERNMENT 31 

III.  WE,  THE  PEOPLE 47 

IV.  THE  UNITED  STATES 63 

V.    THE  ENACTMENT.  —  THIS  CONSTITUTION     ...  74 

VI.    THE  PURPOSES.  —  MORE  PERFECT  UNION    ...  90 

VII.    EsTABLfsH  JUSTICE.  —  DOMESTIC  TRANQUILLITY  113 

VIII.    THE  COMMON  DEFENCE 118 

IX.-    THE  GENERAL  WELFARE 126 

X.    SECURITY  OF  LIBERTY 133 

XI.  THE  ORGANIZATION. — THE- LEGISLATIVE  DEPART- 
MENT.—  HOUSE  OF  KEPRESENTATIVES. — THE 
SENATE.  —  THE  SEPARATE  POWERS.  —  THE 

CONGRESS 149 

XII. .  THE  LEGISLATIVE  POWERS.  —  GENERAL  ....  1 75 

XIII.  LEGISLATIVE  POWERS. —  GENERAL 189 

XIV.  LEGISLATIVE  POWERS. —  GENERAL 198 

XV.    LEGISLATIVE  POWERS. —  GENERAL 206 

XVI.    LEGISLATIVE  POWERS. —  GENERAL  .  220 


Xll  CONTENTS. 

CHAPTER  PAGE 

XVII.    LEGISLATIVE  POWERS. —  SPECIAL  . 235 

XVIII.    LEGISLATIVE  POWERS. —  SPECIAL 250 

XIX.    LEGISLATIVE  POWERS. —  SPECIAL 272 

XX.    LEGISLATIVE    POWERS,     SPECIAL  —  FINANCIAL 

POWERS 289 

.    XXL    LEGISLATIVE    POWERS,    SPECIAL.  —  FINANCIAL 

POWERS 310 

XXII.    LEGISLATIVE  POWERS,  SPECIAL.  —  COMMERCIAL 

POWERS 326 

XXIII.  LEGISLATIVE   POWERS,   SPECIAL. — WAR  POW- 

ERS.—  MISCELLANEOUS  POWERS 349 

XXIV.  LEGISLATIVE  POWERS,  SPECIAL 368 

XXV.    LEGISLATIVE     POWERS,     SPECIAL.  —  AMEND- 
MENTS    390 

XXVI.    LEGISLATIVE  POWERS,  SPECIAL. — RESTRICTIONS  410 
XXVII.    THE    EXECUTIVE.  —  THE     PRESIDENT.  —  His 

POWERS 430 

XXVIII.    THE  JUDICIARY.  —  JUDICIAL  POWERS    .    .  •.    .  455 

XXIX.     THE  STATES.    . • 488 

XXX     STATE  DISABILITIES  ...........  505 


INDEX 517 


CONSTITUTION 


THE  UNITED   STATES    OF   AMERICA. 


WE,  the  people  of  the  United  States,  in  order  to  form  a 
more  perfect  union,  establish  justice,  ensure  domestic 
tranquillity,  provide  for  the  common  defence,  promote 
the  general  welfare,  and  secure  the  blessings  of  liberty 
to  ourselves  and  our  posterity,  do  ordain  and  establish 
this  Constitution  for  the  United  States  of  America. 

ARTICLE    I. 

SECTION  1. 

[1.]  All  legislative  powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall 
consist  of  a  Senate  and  House  of  Representatives. 

SECTION  2. 

[1.]  The  House  of  Representatives  shall  be  composed 
of  members  chosen  every  second  year  by  the  people  of 
the  several  States ;  and  the  electors  in  each  State  shall 
have  the  qualifications  requisite  for  electors  of  the  most 
numerous  branch  of  the  State  legislature. 

[2.]  No  person  shall  be  a  representative  who  shall  not 
have  attained  to  the  age  of  twenty-five  years,  and  been 

1 


2  THE  CONSTITUTION. 

seven  years  a  citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  inhabitant  of  that  State  in  which 
he  shall  be  chosen. 

[3.]  Representatives  and  direct  taxes  shall  be  appor- 
tioned among  the  several  States  which  may  be  included 
•  within  this  Union,  according  to  their  respective  num- 
bers, which  shall  be  determined  by  adding  to  the  whole 
number  of  free  persons,  including  those  bound  to  ser- 
vice for  a  term  of  years,  and  excluding  Indians  not 
taxed,  three-fifths  of  all  other  persons.  The  actual 
enumeration  shall  be  made  within  three  years  after 
the  first  meeting  of  the  Congress  of  the  United  States, 
and  within  every  subsequent  term  of  ten  years,  in 
such  manner  as  they  shall  by  law  direct.  The  num- 
ber of  Representatives  shall  not  exceed  one  for  every 
thirty  thousand,  but  each  State  shall  have  at  least  one 
Representative  ;  and,  until  such  enumeration  shall  be 
made,  the  State  of  New  Hampshire  shall  be  entitled 
to  choose  three,  Massachusetts  eight,  Rhode  Island 
and  Providence  Plantations  one,  Connecticut  five,  New 
York  six,  New  Jersey  four,  Pennsylvania  eight,  Dela- 
ware one,  Maryland  six,  Virginia  ten,  North  Carolina 
five,  South  Carolina  five,  and  Georgia  three. 

[4.]  When  vacancies  happen  in  the  representation 
from  any  State,  the  executive  authority  thereof  shall 
issue  writs  of  election  to  fill  such  vacancies. 

[5.]  The  House  of  Representatives  shall  choose  their 
Speaker  and  other  officers,  and  shall  have  the  sole 
power  of  impeachment. 

SECTION  3. 

[1.]  The  Senate  of  the  United  States  shall  be  com- 
posed of  two  Senators  from  each  State,  chosen  by  the 


THE   CONSTITUTION.  3 

legislature  thereof,  for    six   years ;    and   each  Senator 
shall  have  one  vote. 

[2.]  Immediately  after  they  shall  be  assembled,  in 
consequence  of  the  first  election,  they  shall  be  divided 
as  equally  as  may  be»  into  three  classes.  The  seats  of 
the  Senators  of  the  first  class  shall  be  vacated  at  the 
expiration  of  the  second  year,  of  the  second  class,  at 
the  expiration  of  the  fourth  year,  and  of  the  third  class, 
at  the  expiration  of  the  sixth  year,  so  that  one-third 
may  be  chosen  every  second  year ;  and  if  vacancies  hap- 
pen, by  resignation  or  otherwise,  during  the  recess  of 
the  legislature  of  any  State,  the  Executive  thereof  may 
make  temporary  appointments  until  the  next  meeting  of 
the  legislature,  which  shall  then  fill  such  vacancies. 

[3.]  No  person  shall  be  a  Senator  who  shall  not  have 
attained  to  the  age  of  thirty  years,  and  been  nine  years  a 
citizen  of  the  United  States ;  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  State  for  which  he  shall 
be  chosen. 

[4.]  The  Vice-President  of  the  United  States  shall  be 
President  of  the  Senate,  but  shall  have  no  vote  unless 
they  be  equally  divided. 

[5.]  The  Senate  shall  choose  their  other  officers,  and 
also  a  President  pro  tempore,  in  the  absence  of  the  Vice- 
President,  or  when  he  shall  exercise  the  office  of  Presi- 
dent of  the  United  States. 

[6.]  The  Senate  shall  have  the  sole  power  to  try  all 
impeachments.  When  sitting  for  that  purpose,  they 
shall  be  on  oath  or  affirmation.  When  the  President  of 
the  United  States  is  tried,  the  Chief-Justice  shall  pre- 
side ;  and  no  person  shall  be  convicted  without  the 
concurrence  of  two-thirds  of  the  members  present. 
[7.]  Judgment,  in  cases  of  impeachment,  shall  not 


4  THE   CONSTITUTION. 

extend  further  than  to  removal  from  office,  and  disquali- 
cation  to  hold  and  enjoy  any  office  of  honor,  trust,  or 
profit  under  the  United  States ;  but  the  party  convicted 
shall  nevertheless  be  liable  and  subject  to  indictment, 
trial,  judgment,  and  punishment,  according  to  law. 

SECTION  4. 

[1.]  The  times,  places,  and  manner  of  holding  elec- 
tions for  Senators  and  Representatives  shall  be  prescribed 
in  each  State  by  the  legislature  thereof;  but  the  Con- 
gress may  at  any  time,  by  law,  make  or  alter  such  regu- 
lations, except  as  to  the  places  of  choosing  Senators. 

[2.]  The  Congress  shall  assemble  at  least  once  in 
every  year ;  and  such  meeting  shall  be  on  the  first  Mon- 
day in  December,  unless  they  shall  by  law  appoint  a 

different  day. 

SECTION  5. 

[1.]  Each  House  shall  be  the  judge  of  the  elections, 
returns,  and  qualifications  of  its  own  members,  and  a 
majority  of  each  shall  constitute  a  quorum  to  do  busi- 
ness ;  but  a  smaller  number  may  adjourn  from  day  to 
day,  and  may  be  authorized  to  compel  the  attendance  of 
absent  members,  in  such  manner  and  under  such  pen- 
alties as  each  House  may  provide. 

[2.]  Each  House  may  determine  the  rules  of  its  pro- 
ceedings, punish  its  members  for  disorderly  behavior, 
and,  with  the  concurrence  of  two-thirds,  expel  a  member. 

[3.]  Each  House  shall  keep  a  journal  of  its  proceed- 
ings, and  from  time  to  time  publish  the  same,  excepting 
such  parts  as  may  in  their  judgment  require  secrecy ; 
and  the  yeas  and  nays  of  the  members  of  either  House 
on  any  question,  shall,  at  the  desire  of  one-fifth  of  those 
present,  be  entered  on  the  journal. 


THE  CONSTITUTION.  5 

[4.]  Neither  House,  during  the  session  of  Congress, 
shall,  without  the  consent  of  the  other,  adjourn  for  more 
than  three  days,  nor  to  any  other  place  than  that  in 
which  the  two  Houses  shall  be  sitting. 

SECTION  6. 

[1.]  The  Senators  and  Representatives  shall  receive  a 
compensation  for  their  services,  to  be  ascertained  by  law, 
and  paid  out  of  the  treasury  of  the  United  States.  They 
shall  in  all  cases,  except  treason,  felony,  and  breach  of 
the  peace,  be  privileged  from  arrest  during  their  attend- 
ance at  the  session  of  their  respective  Houses,  and  in 
going  to  and  returning  from  the  same;  and  for  any 
speech  or  debate  in  either  House,  they  shall  not  be  ques- 
tioned in  any  other  place. 

[2.]  No  Senator  or  Representative  shall,  during  the 
time  for  which  he  was  elected,  be  appointed  to  any  civil 
office  under  the  authority  of  the  United  States,  which 
shall  have  been  created,  or  the  emoluments  whereof  shall 
have  been  increased  during  such  time ;  and  no  person 
holding  any  office  under  the  United  States  shall  be 
a  member  of  either  House  during  his  continuance  in 

office. 

SECTION  7. 

[1.]  All  bills  for  raising  revenue  shall  originate  in  the 
House  of  Representatives ;  but  the  Senate  may  propose 
or  concur  with  amendments,  as  on  other  bills. 

[2.]  Every  bill  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate,  shall,  before  it  become  a 
law,  be  presented  to  the  President  of  the  United  States. 
If  he  approve,  he  shall  sign  it;  but,  if  not,  he  shall 
return  it,  witli  his  objections,  to  that  House  in  which  it 
shall  have  originated,  who  shall  enter  the  objections  at 


6  THE  CONSTITUTION. 

large  on  their  journal,  and  proceed  to  reconsider  it.  If, 
after  such  reconsideration,  two-thirds  of  that  House  shall 
agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the 
objections,  to  the  other  House,  by  which  it  shall  likewise 
be  reconsidered,  and,  if  approved  by  two-thirds  of  that 
House,  it  shall  become  a  law.  But  in  all  such  cases  the 
votes  of  both  Houses  shall  be  determined  by  -yeas  and 
nays,  and  the  names  of  the  persons  voting  for  and 
against  the  bill  shall  be  entered  on  the  journal  of  each 
House  respectively.  If  any  bill  shall  not  be  returned  by 
the  President  within  ten  days  (Sundays  excepted)  after 
it  shall  have  been  presented  to  him,  the  same  shall  be  a 
law,  in  like  manner  as  if  he  had  signed  it,  unless  the 
Congress,  by  their  adjournment,  prevent  its  return,  in 
which  case  it  shall  not  be  a  law. 

[3.]  Every  order,  resolution,  or  vote,  to  which  the  con- 
currence of  the  Senate  and  House  of  Representatives 
may  be  necessary  (except  on  a  question  of  adjournment), 
shall  be  presented  to  the  President  of  the  United  States  ; 
and,  before  the  same  shall  take  effect,  shall  be  approved 
by  him,  or,  being  disapproved  by  him,  £hall  be  repassed  by 
two-thirds  of  the  Senate  and  House  of  Representatives, 
according  to  the  rules  and  limitations  prescribed  in  the 

case  of  a  bill. 

SECTION  8. 

The  Congress  shall  have  power,  — 

[1.]  To  lay  and  collect  taxes,  duties,  imposts,  and 
excises ;  to  pay  the  debts  and  provide  for  the  common 
defence  and  general  welfare  of  the  United  States ;  but 
all  duties,  imposts,  and  excises  shall  be  uniform  through- 
out the  United  States : 

[2.]  To  borrow  money  on  the  credit  of  the  United 
States : 


THE   CONSTITUTION.  7 

[3.]  To  regulate  commerce  with  foreign  nations,  and 
among  the  several  States,  and  with  the  Indian  tribes : 

[4.]  To  establish  an  uniform  rule  of  naturalization, 
and  uniform  laws  on  the  subject  of  bankruptcies,  through- 
out the  United  States : 

[5.]  To  coin  money,  regulate  the  value  thereof,  and 
of  foreign  coin,  and  fix  the  standard  of  weights  and 
measures  : 

[6.]  To  provide  for  the  punishment  of  counterfeiting 
the  securities  and  current  coin  of  the  United  States  : 

[7.]  To  establish  post-offices  and  post-roads : 

[8.]  To  promote  the  progress  of  science  and  useful 
arts,  by  securing,  for  limited  times,  to  authors  and  in- 
ventors the  exclusive  right  to  their  respective  writings 
and  discoveries : 

[9.]  To  constitute  tribunals  inferior  to  the  Supreme 
Court : 

[10.]  To  define  and  punish  piracies,  and  felonies  com- 
mitted on  the  high  seas,  and  offences  against  the  law  of 
nations : 

[11.]  To  declare  war,  grant  letters  of  marque  and 
reprisal,  and  make  rules  concerning  captures  on  land 
and  water: 

[12.]  To  raise  and  support  armies  ;  but  no  appropria- 
tion of  money  to  that  use  shall  be  for  a  longer  term  than 
two  years  : 

[13.]  To  provide  and  maintain  a  navy: 

[14.]  To  make  rules  for  the  government  and  regula- 
tion of  the  land  and  naval  forces : 

[15.]  To  provide  for  calling  forth  the  militia  to  exe- 
cute the  laws  of  the  Union,  suppress  insurrections,  and 
repel  invasions : 

[16.]  To  provide  for  organizing,  arming,  and  disciplin- 


8  THE   CONSTITUTION. 

ing  the  militia,  and  for  governing  such  part  of  them  as 
may  be  employed  in  the  service  of  the  United  States, 
reserving  to  the  States  respectively  the  appointment  of 
the  officers,  and  the  authority  of  training  the  militia 
according  to  the  discipline  prescribed  by  Congress : 

[17.]  To  exercise  exclusive  legislation,  in  all  cases 
whatsoever,  over  such  district  (not  exceeding  ten  miles 
square)  as  may,  by  cession  of  particular  States,  and  the 
acceptance  of  Congress,  become  the  seat  of  government 
of  the  United  States ;  and  to  exercise  like  authority  over 
all  places  purchased,  by  the  consent  of  the  Legislature  of 
the  State  in  which  the  same  shall  be,  for  the  erection 
of  forts,  magazines,  arsenals,  dock-yards,  and  other 
needful  buildings :  —  And 

[18.]  To  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  this  Constitu- 
tion in  the  Government  of  the  United  States,  or  in  any 
department  or  officer  thereof. 

SECTION  9. 

[1.]  The  migration  or  importation  of  such  persons,  as 
any  of  the  States  now  existing  shall  think  proper  to 
admit,  shall  not  be  prohibited  by  the  Congress  prior 
to  the  year  one  thousand  eight  hundred  and  eight ;  but  a 
tax  or  duty  may  be  imposed  on  such  importation,  not 
exceeding  ten  dollars  for  each  person. 

[2.]  The  privilege  of  the  writ  of  habeas  corpus  shall 
not  be  suspended,  unless  when  in  cases  of  rebellion  or 
invasion  the  public  safety  may  require  it. 

[3.]  No  bill  of  attainder,  or  ex  post  facto  law,  shall  be 
passed. 

[4.]  No  capitation,  or  other  direct  tax,  shall  be  laid, 


THE  CONSTITUTION.  9 

unless  in  proportion  to  the  census,  or  enumeration  herein 
before  directed  to  be  taken. 

[5.]  No  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  State.  No  preference  shall  be  given,  by  any 
regulation  of  commerce  or  revenue,  to  the  ports  of  ono 
State  over  those  of  another  ;  nor  shall  vessels'  bound  to 
or  from  one  State  be  obliged  to  enter,  clear,  or  pay  duties 
in  another. 

[6.]  No  money  shall  be  drawn  from  the  treasury,  but 
consequence  of  appropriations  made  by  law ;  and  a  regu- 
lar statement  and  account  of  the  receipts  and  expendi- 
tures of  all  public  money  shall  be  published  from  time  to 
time. 

[7.]  No  title  of  nobility  shall  be  granted  by  the  United 
States :  And  no  person  holding  any  office  of  profit  or 
trust  under  them  shall,  without  the  consent  of  the  Con- 
gress, accept  of  any  present,  emolument,  office,  or  title 
of  any  kind  whatever,  from  any  king,  prince,  or  foreign 

State. 

SECTION  10. 

[1.]  No  State  shall  enter  into  any  treaty,  alliance,  or 
confederation ;  grant  letters  of  marque  and  reprisal ; 
coin  money ;  emit  bills  of  credit ;  make  any  thing  but 
gold  and  silver  coin  a  tender  in  payment  of  debts ;  pass 
any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing 
the  obligation  of  contracts,  or  grant  any  title  of  nobility. 

[2.]  No  State  shall,  without  the  consent  of  the  Con- 
gress, lay  any  imposts  or  duties  on  imports  or  exports, 
except  what  may  be  absolutely  necessary  for  executing 
its  inspection  laws  ;  and  the  net  produce  of  all  duties 
and  imposts,  laid  by  any  State  on  imports  or  exports, 
shall  be  for  the  use  of  the  treasury  of  the  United  States  ; 
and  all  such  laws  shall  be  subject  to  the  revision  and 


10  THE   CONSTITUTION. 

control  of  the  Congress.  No  State  shall,  without  the 
consent  of  Congress,  lay  any  duty  of  tonnage,  keep 
troops  or  ships  of  war  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  State  or  with  a 
foreign  power,  or  engage  in  war,  unless  actually  invaded 
or  in  such  imminent  danger  as  will  not  admit  of  delay. 

ARTICLE    II. 

SECTION  1. 

[1.]  The  exekutive  power  shall  be  vested  in  a  Presi- 
dent of  the  United  States  of  America.  He  shall  hold 
his  office  during  the  term  of  four  years,  and,  together 
with  the  Yice-President,  chosen  for  the  same  term,  be 
elected  as  follows :  — 

[2.]  Each  State  shall  appoint,  in  such  manner  as  the 
Legislature  thereof  may  direct,  a  number  of  electors 
equal  to  the  whole  number  of  Senators  and  Representa- 
tives to  which  the  State  may  be  entitled  in  the  Congress  ; 
but  no  Senator  or  Representative,  or  person  holding  an 
office  of  trust  or  profit  under  the  United  States,  shall  be 
appointed  an  elector. 

[3.]  The  electors  shall  meet  in  their  respective  States, 
and  vote  by  ballot  for  two  persons,  of  whom  one  at  least 
shall  not  be  an  inhabitant  of  the  same  State  with  them- 
selves. And  they  shall  make  a  list  of  all  the  persons 
voted  for,  and  of  the  number  of  votes  for  each ;  which 
list  they  shall  sign  and  certify,  and  transmit,  sealed,  to 
the  seat  of  the  government  of  the  United  States,  directed 
to  the  President  of  the  Senate.  The  President  of  the 
Senate  shall,  in  the  presence  of  the  Senate  and  House 
of  Representatives,  open  all  the  certificates,  and  the 
votes  shall  then  be  counted.  The  person  having  the 


THE   CONSTITUTION.  11 

greatest  number  of  votes  shall  be  the  President,  if  such 
number  be  a  majority  of  the  whole  number  of  electors 
appointed  ;  and  if  there  be  more  than  one  who  have  such 
majority,  and  have  an  equal  number  of  votes,  then  the 
House  of  Representatives  shall  immediately  choose  by 
ballot  one  of  them  for  President ;  and  if  no  person  have 
a  majority,  then,  from  the  five  highest  on  the  list,  the 
said  House  shall  in  like  manner  choose  the  President. 
But,  in  choosing  the  President,  the  votes  shall  be  taken 
by  States,  the  representation  from  each  State  having  one 
vote ;  a  quorum  for  this  purpose  shall  consist  of  a  mem- 
ber or  members  from  two-thirds  of  the  States,  and  a 
majority  of  all  the  States  shall  be  necessary  to  a  choice. 
In  every  case,  after  the  choice  of  the  President,  the 
person  having  the  greatest  number  of  votes  of  the  elec- 
tors shall  be  the  Vice-President ;  but,  if  there  should 
remain  two  or  more  who  have  equal  votes,  the  Senate 
shall  choose  from  them  by  ballot  the  Vice-President. 

[4.]  The  Congress  may  determine  the  time  of  choos- 
ing the  electors,  and  the  day  on  which  they  shall  give 
their  votes  ;  which  day  shall  be  the  same  throughout  the 
United  States. 

[5.]  No  person,  except  a  natural-born  citizen,  or  a 
citizen  of  the  United  States  at  the  time  of  the  adoption 
of  this  Constitution,  shall  be  eligible  to  the  office  of 
President ;  neither  shall  any  person  be  eligible  to  that 
office  who  shall  not  have  attained  to  the  age  of  thirty- 
five  years,  and  been  fourteen  years  a  resident  within  the 
United  States. 

[6.]  In  case  of  the  removal  of  the  President  from 
office,  or  of  his  death,  resignation,  or  inability  to  dis- 
charge the  powers  and  duties  of  the  said  office,  the  same 
shall  devolve  on  the  Vice-President ;  and  the  Congress 


12  THE  CONSTITUTION. 

may  by  law  provide  for  the  case  of  removal,  death,  resig- 
nation, or  inability,  both  of  the  President  and  Vice- 
President,  declaring  what  officer  shall  then  act  as 
President,  and  such  officer  shall  act  accordingly,  until 
the  disability  be  removed,  or  a  President  shall  be  elected. 

[7.]  The  President  shall,  at  stated  times,  receive  for 
his  services  a  compensation,  which  shall  neither  be  in- 
creased nor  diminished  during  the  period  for  which  he 
shall  have  been  elected,  and  he  shall  not  receive  within 
that  period  any  other  emolument  from  the  United  States 
or  any  of  them. 

[8.]  Before  he  enter  on  the  execution  of  his  office,  he 
shall  take  the  following  oath  or  affirmation :  — 

[9.]  "  I  do  solemnly  swear  (or  affirm)  that  I  will 
faithfully  execute  the  office  of  President  of  the  United 
States,  and  will,  to  the  best  of  my  ability,  preserve,  pro- 
tect, and  defend  the  Constitution  of  the  United  States. 

SECTION  2. 

[1.]  The  President  shall  be  commander-in-chief  of 
the  army  and  navy  of  the  United  States,  and  of  the 
militia  of  the  several  States,  when  called  into  the  actual 
service  of  the  United  States.  He  may  require  the 
opinion,  in  writing,  of  the  principal  officer  in  each  of 
the  executive  departments,  upon  any  subject  relating  to 
the  duties  of  their  respective  offices  ;  and  he  shall  have 
power  to  grant  reprieves  and  pardons  for  offences  against 
the  United  States,  except  in  cases  of  impeachment. 

[2.]  He  shall  have  power,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  make  treaties,  provided  two- 
thirds  of  the  Senators  present  concur ;  and  he  shall 
nominate,  and  by  and  with  the  advice  and  consent  of  the 
Senate,  shall  appoint  ambassadors,  other  public  ministers 


THE  CONSTITUTION.  13 

and  consuls,  Judges  of  the  Supreme  Court,  and  all  other 
officers  of  the  United  States,  whose  appointments  are 
not  herein  otherwise  provided  for,  and  which  shall  be 
established  by  law ;  but  the  Congress  may  by  law  vest 
the  appointment  of  such  inferior  officers,  as  they  think 
proper,  in  the  President  alone,  in  the  courts  of  law,  or  in 
the  heads  of  departments. 

[3.]  The  President  shall  have  power  to  fill  up  all 
vacancies  that  may  happen  during  the  recess  of  the  Sen- 
ate, by  granting  commissions,  which  shall  expire  at  the 
end  of  their  next  session. 

SECTION  3. 

[1.]  He  shall  from  time  to  time  give  to  the  Congress 
information  of  the  state  of  the  Union,  and  recommend 
to  their  consideration  such  measures  as  he  shall  judge 
necessary  and  expedient;  he  may,  on  extraordinary 
occasions,  convene  both  Houses,  or  either  of  them,  and, 
in  case  of  disagreement  between  them  with  respect  to 
the  time  of  adjournment,  he  may  adjourn  them  to  such 
time  as  he  shall  think  proper  ;  he  shall  receive  ambassa- 
dors and  other  public  ministers ;  he  shall  take  care  that 
the  laws  be  faithfully  executed,  and  shall  commission  all 
the  officers  of  the  United  States. 

SECTION  4. 

[1.]  The  President,  Vice -President,  and  all  civil 
officers  of  the  United  States,  shall  be  removed  from  office 
on  impeachment  for,  and  conviction  of,  treason,  bribery, 
or  other  high  crimes  and  misdemeanors. 


14:  THE   CONSTITUTION. 

ARTICLE    III. 
SECTION  1. 

[1.]  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts 
as  the  Congress  may  from  time  to  time  ordain  and  estab- 
lish. The  Judges,  both  of  the  Supreme  and  inferior 
Cqurts,  shall  hold  their  offices  during  good  behavior; 
and  shall,  at  stated  times,  receive  for  their  services  a 
compensation  which  shall  not  be  diminished  during  their 
continuance  in  office. 

SECTION  2. 

[1.]  The  judicial  power  shall  extend  to  all  cases  in 
law  and  equity  arising  under  this  Constitution,  the  laws 
of  the  United  States,  and  treaties  made,  or  which  shall 
be  made,  under  their  authority ;  to  all  cases  affecting 
ambassadors,  other  public  ministers  and  consuls ;  to  all 
cases  of  admiralty  and  maritime  jurisdiction ;  to  contro- 
versies to  which  the  United  States  shall  be  a  party ;  to 
controversies  between  two  or  more  States,  between  a 
State  and  citizens  of  another  State,  between  citizens  of 
different  States,  between  citizens  of  the  same  State  claim- 
ing lands  under  grants  of  different  States,  and  between  a 
State  or  the  citizens  thereof  and  foreign  States,  citizens, 
or  subjects. 

[2.]  In  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls,  and  those  in  which  a  State  shall 
be  a  party,  the  Supreme  Court  shall  have  original  juris- 
diction. In  all  the  other  cases  before  mentioned,  the 
Supreme  Court  shall  have  appellate  jurisdiction,  both  as 
to  law  and  fact,  with  such  exceptions  and  under  such 
regulations  as  the  Congress  shall  make. 


THE   CONSTITUTION.  15 

[3.]  The  trial  of  all  crimes,  except  in  cases  of  im- 
peachment, shall  be  by  jury ;  and  such  trial  shall  be  held 
in  the  State  where  the  said  crimes  shall  have  been  com- 
mitted :  but,  when  not  committed  within  any  State,  the 
trial  shall  be  at  such  place  or  places  as  the  Congress 
may  by  law  have  directed. 

SECTION  3. 

[1.]  Treason  against  the  United  States  shall  consist 
only  in  levying  war  against  them,  or  in  adhering  to  their 
enemies,  giving  them  aid  and  comfort.  No  person  shall 
be  convicted  of  treason  unless  on  the  testimony  of  two 
witnesses  to  the  same  overt  act,  or  on  confession  in 
open  court. 

[2.]  The  Congress  shall  have  power  to  declare  the 
punishment  of  treason ;  but  no  attainder  of  treason  shall 
work  corruption  of  blood,  or  forfeiture,  except  during 
the  life  of  the  person  attainted.  « 

ARTICLE    IV. 

SECTION  1. 

[1.]  Full  faith  and  credit  shall  be  given  in  each  State 
to  the  public  acts,  records,  and  judicial  proceedings  of 
every  other  State.  And  the  Congress  may  by  general 
laws  prescribe  the  manner  in  which  such  acts,  records, 
and  proceedings  shall  be  proved,  and  the  effect  thereof. 

SECTION  2. 

[1.]  The  citizens  of  each  State  shall  be  entitled  to 
all  privileges  and  immunities  of  citizens  in  the  several 
States. 

[2.]    A  person  charged  in   any  State  with  treason, 


16  THE  CONSTITUTION. 

felony,  or  other  crime,  who  shall  flee  from  justice,  and 
be  found  in  another  State,  shall,  on  demand  of  the 
executive  authority  of  the  State  from  which  he  fled,  be 
delivered  up,  to  be  removed  to  the  State  having  jurisdic- 
tion of  the  crime. 

[3.]  No  person  held  to  service  or  labor  in  one  State, 
under  the  laws  thereof,  escaping  into  another,  shall,  in 
consequence  of  any  law  or  regulation  therein,  be  dis- 
charged from  such  service  or  labor,  but  shall  be  delivered 
up  on  claim  of  the  party  to  whom  such  service  or  labor 
may  be  due. 

SECTION  3. 

[1.]  New  States  may  be  admitted  by  the  Congress 
into  this  Union ;  but  no  new  State  shall  be  formed  or 
erected  within  the  jurisdiction  of  any  other  State ;  nor 
any  State  be  formed  by  the  junction  of  two  or  more 
States,  or  parts  of  States,  without  the  consent  of  the 
legislatures  of  the  States  concerned,  as  well  as  of  the 
Congress. 

[2.]  The  Congress  shall  have  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United 
States ;  and  nothing  in  this  Constitution  shall  be  so  con- 
strued as  to  prejudice  any  claims  of  the  United  States, 
or  of  any  particular  State. 

SECTION  4. 

[1.]  The  United  States  shall  guarantee  to  every  State 
in  this  Union  a  republican  form  of  government,  and  shall 
protect  each  of  them  against  invasion ;  and,  on  applica- 
tion of  the  legislature,  or  of  the  executive  (when  the 
legislature  cannot  be  convened),  against  domestic  vio- 
lence. 


THE  CONSTITUTION.  '17 

ARTICLE    V. 

[1.]  The  Congress,  whenever  two -thirds  of  both 
Houses  shall  deem  it  necessary,  shall  propose  amend- 
ments to  this  Constitution,  or,  on  the  application  of 
the  legislatures  of  two-thirds  of  the  several  States,  shall 
call  a  convention  for  proposing  amendments,  which,  in 
either  case,  shall  be  valid,  to  all  intents  and  purposes,  as 
part  of  this  Constitution,  when  ratified  by  the  legisla- 
tures of  three-fourths  of  the  several  States,  or  by  con- 
ventions in  three-fourths  thereof,  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  the  Congress : 
Provided,  that  no  amendment,  which  may  be  made  prior 
to  the  year  one  thousand  eight  hundred  and  eight,  shall 
in  any  manner  affect  the  first  and  fourth  clauses  in  the 
ninth  section  of  the  first  article  ;  and  that  no  State,  with- 
out its  consent,  shall  be  deprived  of  its  equal  suffrage  in 
the  Senate. 

ARTICLE    VI. 

[1.]  All  debts  contracted  and  engagements  entered 
into  before  the  adoption  of  this  Constitution  shall  be  as 
valid  against  the  United  States  under  this  Constitution 
as  under  the  Confederation. 

[2.]  This  Constitution,  and  the  laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof;  and 
all  treaties  made,  or  which  shall  be  made,  under  the 
.authority  of  the  United  States,  shall  be  the  supreme  law 
of  the  land;  and  the  judges  in  every  State  shall  be 
bound  thereby ;  any  thing  in  the  constitution  or  laws  of 
any  State  to  the  contrary  notwithstanding. 

[3.]  The  Senators  and  Representatives  before  men- 
tioned, and  the  members  of  the  several  State  legislatures, 

2 


18'  THE  CONSTITUTION 

and  all  executive  and  judicial  officers,  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound,  by  oath 
or  affirmation,  to  support  this  Constitution ;  but  no  reli- 
gious test  shall  ever  be  required  as  a  qualification  to  any 
office  or  public  trust  under  the  United  States. 

ARTICLE    VII. 

[1.]  The  ratification  of  the  conventions  of  nine  States 
shall  be  sufficient  for  the  establishment  of  this  Constitu- 
tion between  the  States  so  ratifying  the  same. 


AMENDMENTS   TO  THE  CONSTITUTION. 


ARTICLE    I. 

Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise  thereof ; 
or  abridging  the  freedom  of  speech,  or  of  the  press ;  or 
of  the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  'the  government  for  a  redress  of  grievances. 

ARTICLE    II. 

A  well-regulated  militia  being  necessary  to  the  security 
of  a  free  state,  the  right  of  the  people  to  keep  and  bear 
arms  shall  not  be  infringed. 

ARTICLE    III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner ;  nor  in  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law. 

ARTICLE    IV. 

The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated ;  and  no  warrants 
shall  issue,  but  upon  probable  cause,  supported  by  oath 

[19] 


20  THE   CONSTITUTION. 

or  affirmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized. 

ARTICLE    V. 

No  person  shall  be  held  to  answer  for  a  capital,  or 
otherwise  infamous  crime,  unless  on  a  presentment 
or  indictment  of  a  grand  jury,  except  in  cases  arising  in 
the  land  or  naval  forces,  or  in  the  militia,  wh\en  in  actual 
service,  in  time  of  war  or  public  danger  ;  nor  shall  any 
person  be  subject  for  the  same  offence  to  be  twice  put 
in  jeopardy  of  life  or  limb ;  nor  shall  be  compelled,  in 
any  criminal  case,  to  be  a  witness  against  himself;  nor 
be  deprived  of  life,  liberty,  or  property,  without  due 
process  of  law ;  nor  shall  private  property  be  taken  for 
public  use  without  just  compensation. 

ARTICLE    VI. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall 
tiave  been  committed,  which  district  shall  have  been  pre- 
viously ascertained  by  law  ;  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation  ;  to  be  confronted 
with  the  witnesses  against  him ;  to  have  compulsory  pro- 
cess for  obtaining  witnesses  in  his  favor ;  and  to  have  the 
assistance  of  counsel  for  his  defence. 

ARTICLE    VII. 

In  suits  at  common  law,  where  the  value  in  contro- 
versy shall  exceed  twenty  dollars,  the  right  of  trial  by 


THE  CONSTITUTION.  21 

jury  shall  be  preserved ;  and  no  fact  tried  by  a  jury 
shall  be  otherwise  re-examined  in  any  court  of  the  United 
States,  than  according  to  the  rules  of  the  common  law. 

• 
ARTICLE    VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishments  in- 
flicted. 

ARTICLE    IX. 

The  enumeration  in  the  Constitution  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  others  re- 
tained by  the  people. 

ARTICLE    X. 

The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively,  or  to  the  people. 

ARTICLE    XI. 

.  The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States 
by  citizens  of  another  State,  or  by  citizens  or  subjects  of 
any  foreign  State. 

ARTICLE    XH. 

1.  The  electors  shall  meet  in  their  respective  States, 
and  vote  by  ballot  for  President  and  Yice-President,  one 


22  THE  CONSTITUTION. 

of  whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves  ;  they  shall  name  in  the  ballots  the 
person  voted  for  as  President,  and,  in  distinct  ballots,  the 
person  voted  for  as  Yice-President ;  and  they  shall  make 
distinct  lists  of  all  persons  voted  for  as  President,  and 
of  all  persons  voted  for  as  Vice-President,  and  of  the 
number  of  votes  for  each,  which  list  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  the  govern- 
ment of  the  United  States,  directed  to  the  President  of 
the  Senate ;  the  President  of  the  Senate  shall,  in  the 
presence  of  the  Senate  and  House  of  Kepresentatives, 
open  all  the  certificates,  and  the  votes  shall  then  be 
counted  :  the  person  having  the  greatest  number  of  votes 
for  President,  shall  be  the  President,  if  such  number  be 
a  majority  of  the  whole  number  of  electors  appointed  ; 
and  if  no  person  have  such  a  majority,  then,  from  the 
persons  having  the  highest  numbers,  not  exceeding 
three,  on  the  list  of  those  voted  for  as  President,  the 
House  of  Representatives  shall  choose  immediately,  by 
ballot,  the  President.  But,  in  choosing  the  President, 
the  votes  shall  be  taken  by  States,  the  representation 
from  each  State  having  one  vote.  A  quorum  for  this 
purpose  shall  consist  of  a  member  or  members  from  two- 
thirds  of  the  States,  and  a  majority  of  all  the  States  shall 
be  necessary  to  a  choice.  And,  if  the  House  of  Repre- 
sentatives shall  not  choose  a  President,  whenever  the 
right  of  choice  shall  devolve  upon  them,  before  the  fourth 
day  of  March  next  following,  then  the  Vice-President 
shall  act  as  President,  as  in  the  case  of  the  death  or 
other  constitutional  disability  of  the  President. 

2.  The  person  having  the  greatest  number  of  votes 
as  Vice-President,  shall  be  the  Vice-President,  if  such 
number  be  a  majority  of  the  whole  number  of  electors 


THE  CONSTITUTION.  23 

appointed  ;  and  if  no  person  have  a  majority,  then,  from 
the  4;wo  highest  numbers  on  the  list,  the  Senate  shall 
choose  the  Vice-President.  A  quorum  for  the  purpose 
shall  consist  of  two-thirds  of  the  whole  number  of  Sena- 
tors :  a  majority  of  the  whole  number  shall  be  necessary 
to  a  choice. 

3.  But  no  person,  constitutionally  ineligible  to  the 
office  of  President,  shall  be  eligible  to  that  of  Vice- 
President  of  the  United  States. 


ARTICLE 

1.  Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime,  whereof  the  party  shall  have 
been  duly  convicted,  shall  exist  within  the  United  States, 
or  any  place  subject  to  their  jurisdiction. 

2.  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation. 

ARTICLE    XIV. 

1.  All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citi- 
zens of  the  United  States  and  of  the  States  wherein  they 
reside.    No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of 
the  United  States  ;  nor  shall  any  State  deprive  any  per- 
son of  life,  liberty,  or  property,  without  due  process  of 
law  ;  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws. 

2.  Representatives   shall  be  apportioned  among  the 
several   States  according  to-  their  respective  numbers, 
counting  the  whole  number  of  persons  in  each  State, 


24  THE   CONSTITUTION. 

excluding  Indians  not  taxed ;  but,  whenever  the  right  to 
vote  at  any  election  for  the  choice  of  electors  for  Presi- 
dent and  Vice-President  of  the  United  States,  Repre- 
sentatives in  Congress,  the  executive  and  judicial  officers 
of  a  State,  or  members  of  the  legislature  thereof,  is 
denied  to  any  of  the  male  inhabitants  of  such  State, 
being  twenty-one  years  of  age  and  citizens  of  the  United 
States,  or  in  any  way  abridged,  except  for  participation 
in  rebellion  or  other  crime,  the  basis  of  representation 
therein  shall  be  reduced  in  the  proportion  which  the 
number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty-one  years  of  age  in  such 
State. 

3.  No  person  shall  be  a  Senator  or  Representative  in 
Congress,  or  elector  of  President  and  Vice-President, 
or  hold  any  office,  civil  or  military,  under  the  United 
States,  or  under  any  State,  who,  having  previously  taken 
an  oath  as  a  member  of  Congress,  or  as  an  officer  of  the 
United  States,  or  as  a  member  of  any  State  legislature, 
or  as  an  executive  or  judicial  officer  of  any  State,  to 
support  the  Constitution  of  the  United  States,  shall  have 
engaged  in  insurrection  or  rebellion  against  the  same,  or 
given  aid  or  comfort  to  the  enemies  thereof;  but  Con- 
gress may,  by  a  vote  of  two- thirds  of  each  House,  remove 
such  disability. 

4.  The  validity   of  the    public   debt  of  the  United 
States  authorized  by  law,  including  debts  incurred  for 
the  payment  of  pensions  and  bounties  for  services  in 
suppressing  insurrection  or  rebellion,  shall  not  be  ques- 
tioned.     But  neither  the  United  States,  nor  any  State, 
shall   assume  or  pay  any  debt  or  obligation   incurred 
in  aid  of  insurrection  or  rebellion  against  the  United 
States,  or  any  claim  for  the  loss  or  emancipation  of  any 


THE  CONSTITUTION.  25 

slave  ;  but  all  such  debts,  obligations,  and  claims  shall 
be  held  illegal  and  void. 

5.   The   Congress   shall  have   power   to   enforce,  by 
appropriate  legislation,  the  provisions  of  this  article. 


MANUAL  OF  THE  CONSTITUTION. 


CHAPTER   I. 

POSTULATE. 

§  1.  IN  entering  upon  the  study  of  the  Con- 
stitution of  the  United  States,  two  principles 
should  be  firmly  established  in  the  mind  of  the 
student:  first,  that  it  is  "the  supreme  law  of 
the  land;"  and,  second,  that  it  constitutes  a 
government  for  the  purpose,  and  of  course  with 
the  power  and  duty,  of  executing  it.  The  first 
is  proclaimed  by  the  Constitution  itself,  in  these 
precise  words,  and  will  not  be  denied  or  doubted.1 
The  second  rests  on  the  same  unquestionable 
authority,  though  more  circuitously  and  indi- 
rectly asserted. 

§  2.  It  is  a  just  principle,  that  "  every  govern- 
ment ought  to  possess  the  means  of  executing  its 
own  provisions,  by  its  own  authority." 2  There 

1  "  We  must  either  admit  the  proposition,  or  deny  the  authority."  — 
Wtister. 

2  Federalist,  No.  80. 

[27] 


28  POSTULATE. 

must  necessarily  be  a  constitutional  mode  of 
giving  construction  and  efficacy  to  all  constitu- 
tional provisions.  The  first  three  Articles  of 
the  Constitution  provide  for  the  three  several 
departments  of  what  it  repeatedly  calls  "the 
government  of  the  United  States,"  assigning 
appropriate  powers  and  duties  to  each.  The 
executive  department  is  expressly  required  to 
"  take  care  that  the  laws  be  faithfully  executed," 
including  the  Constitution  itself,  —  the  funda- 
mental and  "  supreme  law,"  —  and  all  other  law; 
and  to  make  oath  that  he  "will  faithfully  exe- 
cute the  office."  The  legislative  department  is 
authorized  "to  make  all  laws  necessary  and 
proper  for  carrying  into  execution"  the  powers 
vested  in  the  executive  or  any  other  department 
of  the  government.  The  judicial  department, 
or  "the  judicial  power,  shall  extend  to  all  cases 
in  law  or  equity  arising  under  this  Constitution ; " 
that  is,  from  any  action  or  omission  of  the  Gov- 
ernment or  by  its  authority,  and  which  may 
involve  the  meaning  and  construction  of  every 
sentence  in  the  Constitution.  As  every  power 
conferred  necessarily  involves  a  duty,  here  is 
ample  provision  made  for  the  complete  execution 
of  every  part  and  parcel  of  the  Constitution. 
It  does  not  cover  the  aggregate  merely;  but 
every  word,  sentence,  and  portion  of  it  in  detail, 
from  "  We,  the  people,"  to  the  end  of  Article 

and  all  the  Amendments. 
§  3.   This  duty  of  the  government  was  first 


POSTULATE.  29 

directly  promulgated  by  the  convention  who 
formed  the  instrument.  In  their  resolution  for 
putting  the  Constitution  into  operation,  after  pro- 
viding for  the  choice  of  the  first  President  and 
members  of  Congress,  they  say  that  they  shall 
"  proceed  to  execute  this  Constitution."  It  was 
recognized  and  acted  upon  by  the  first  Presi- 
dent and  Congress,  in  the  enactment  of  the  first 
statute  ever  made  under  the  Constitution.  The 
sixth  Article  of  the  Constitution,  requiring  cer- 
tain oaths  to  be  taken  by  officers  of  the  general 
and  local  governments,  assigned  no  special  duty 
to  the  government  in  general,  or  to  Congress  in 
particular,  respecting  its  execution.  Neverthe- 
less, they  made  this  statute  for  the  express 
purpose  of  executing  it;  and  it  has  been  ap- 
proved and  practised  upon,  by  all  classes  of  the 
government  and  people,  as  long  as  the  govern- 
ment has  stood,  and  is  still  in  force.  The  same 
duty  has  also  been  repeatedly  exercised  in  the 
enactment  of  divers  other  laws,  similarly  called 
for,  though  not  specially  authorized,  and  ex- 
pressly approved  and  sanctioned  by  the  adjudi- 
cations of  the  Supreme  Court.  A  law  is  a  rule 
of  conduct,  and  a  supreme  law  is  above  all 
other  law.  A  law  without  a  sanction  is  no  law, 
and  a  rule  neither  followed  nor  retributed  is 
void.  Hence  the  necessity  which  compelled  the 
American  people  to  make  in  their  government 
an  agent,  with  power  to  execute  the  supreme 
law,  and  every  part  of  it,  —  in  the  language  of 


30  POSTULATE. 

the  "Federalist,"1  "a  common  government,  with 
powers  equal  to  its  objects;"  having  constitu- 
tional power  to  give  effect  to  all  constitutional 
provisions. 

§  4.  With  these  two  important  principles  thor- 
oughly imbibed,  and  constantly  held  in  view,  the 
true  character  of  the  Constitution,  and  the  extent 
of  the  powers  of  the  government,  will  be  more 
easily  investigated,  and  more  readily  understood. 
I  enter  into  no  analysis  or  vindication  of  these 
principles,  because  they  are  considered  as  purely 
elementary  and  fundamental;  as  incontrovertible 
maxims,  if  not  self-evident  truths,  without  which 
there  can  be  no  government.  If  the  Constitu- 
tion is  not  law,  or  if  the  government  is  not 
bound,  has  not  the  right  and  duty,  to  execute 
it,  there  is  nothing  left  that  is  worth  a  discus- 
sion. 

i  No.  62. 


CHAPTER    II. 

THE  GOVERNMENT. 

§  5.  THE  first  clause  of  the  Constitution  is 
not  only  the  first  in  the  order  of  its  arrangement, 
but  the  first  in  the  importance  and  significance 
of  its  contents.  It  is  a  declaration  of  the 
authority  by  which  it  was  made,  the  purposes 
for  which  it  was  made,  the  fundamental  law  by 
which  these  purposes  are  to  be  executed,  and 
the  country  and  nation  to  which  they  are  applied. 
It  is,  in  fact,  the  essence  and  epitome  of  the 
whole  instrument,  by  which  the  government  is 
ordained  and  created,  and  its  purposes,  authority, 
and  duty  established.  It  is  in  these  comprehen- 
sive and  emphatic  words:  "We,  the  people  of 
the  United  States,  in  order  to  form  a  more  per- 
fect union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defence, 
promote  the  general  welfare,  and  secure  the 
blessings  of  liberty  to  ourselves  and  our  pos- 
terity, do  ordain  and  establish  this  Constitution 
for  the  United  States  of  America." 

[31] 


32  THE  GOVERNMENT. 

§  6.  This  enacting  clause,  though  standing  at 
the  head,  and  being  introductory  to  all  the  rest, 
was  really  one  of  the  last  that  was  incorporated 
in  the  Constitution.  The  circumstances  out  of 
which  it  grew,  the  accretions  by  which  from 
time  to  time  it  was  accumulated,  the  alterations 
and  variations  through  which  it  passed  in  the 
process,  and  the  time  and  manner  of  its  incor- 
poration in  its  present  shape  as  a  part  of  the 
instrument,  are  interesting  facts  in  its  history, 
and  well  accord  with  the  importance  of  its  pres- 
ent position  as  the  leading,  enacting,  and  most 
mandatory  section  of  the  Constitution. 

§  7.  The  principal  materials  out  of  which  the 
Constitution  was  compiled,  so  far  as  they  were 
not  original  with  the  convention,  were  found  em- 
bodied, classified,  and  commingled  with  others, 
in  at  least  seven  different  formal  instruments. 
Saying  nothing  of  the  New-England  Confed- 
eracy of  1643,  the  Albany  Plan  of  Union  of 
1754,  or  the  plan  proposed  by  Dr.  Franklin  to 
Congress  in  1775,  there  was,  1st,  The  Articles 
of  Confederation  of  1781,  to  which  the  atten- 
tion of  the  convention  was  directly  called  by  the 
terms  of  their  appointment ;  2d,  A  set  of  resolu- 
tions, introduced,  on  consultation  with  his  asso- 
ciates, by  Mr.  Randolph,  and  called  the  Virginia 
Plan;  3d,  A  Constitution  in  form,  drawn  up  by 
Mr.  Charles  Pinckney,  and  called  the  South- 
Carolina  Plan;  4th,  A  set  of  resolutions,  drawn 
up  on  consultation,  and  introduced  by  Mr.  Pat- 


THE   GOVERNMENT.  33 

terson,  and  called  the  New- Jersey  Plan;  5th, 
Mr.  Hamilton's  draft  of  a  Constitution  in  form, 
expounded  by  him  to  the  convention  in  his 
speech  of  June  18,  1787;  6th,  The  first  draft 
made  under  the  orders  of  the  convention  by  their 
Committee  of  Detail;  and,  7th,  The  final  draft 
made  by  their  Committee  of  Revision.  Each 
new  draft  had  the  benefit  of  the  substance  and 
of  the  discussion  of  all  the  preceding. 

§  8.  The  first  sentence  of  the  Articles  of 
Confederation  was  in  these  words:  "Articles 
of  Confederation  and  perpetual  Union  between 
the  States  of  New  Hampshire,  Massachusetts 
Bay,  Rhode  Island  and  Providence  Plantations, 
Connecticut,  New  York,  New  Jersey,  Penn- 
sylvania, Delaware,  Maryland,  Virginia,  North 
Carolina,  South  Carolina,  and  Georgia."  It  was 
a  mere  naked  title  to  the  instrument,  and  pro-1 
ceeded  "Article  I."  &c.  to  "Article  XIII."  The 
Virginia  Plan  was  a  set  of  resolutions,  num- 
bered one  to  fifteen,  without  title  or  prelude  of 
any  sort.  The  South-Carolina  Plan  was  a  draft 
of  a  Federal  government,  and  began  with  these 
words :  "  We,  the  people  of  the  States  of  New 
Hampshire,  Massachusetts,  Rhode  Island  and 
Providence  Plantations,  Connecticut,  New  York, 
New  Jersey,  Pennsylvania,  Delaware,  Maryland, 
Virginia,  North  Carolina,  South  Carolina,  and 
Georgia,  do  ordain,  declare,  and  establish  the 
following  Constitution  for  the  government  of 
ourselves  and  posterity."  The  New-Jersey  Plan, 


34  THE   GOVERNMENT. 

like  the  Virginia,  was  a  mere  set  of  reso- 
lutions, numerically  arranged,  without  title  or 
prelude.  Mr.  Hamilton's  draft  began  in  these 
words :  "  The  people  of  the  United  States  of 
America  do  ordain  and  establish  this  Constitu- 
tion, for  the  government  of  themselves  and  their 
posterity."  The  Virginia  Plan  was  made  the 
text  for  the  proceedings  of  the  convention  for 
about  two  months,  during  which  time  it  had 
been  debated  and  altered,  till  the  twenty-sixth 
day  of  July,  1787,  when,  in  the  form  of  twenty- 
three  distinct  resolutions  adopted  by  the  con- 
vention, it  was  referred  to  the  Committee  of 
Detail  "  for  the  purpose  of  reporting  a  Constitu- 
tion conformably  to  the  proceedings  aforesaid." 
The  South-Carolina  and  the  !fsTew- Jersey  Plans 
were  at  the  same  time  referred  to  the  same 
Committee,  without  being  specially  considered 
by  the  convention.  After  an  adjournment  for 
ten  days,  the  convention  received  the  report  of 
the  Committee  of  Detail,  which  formed  a  new 
text  for  the  subsequent  debates  and  proceedings 
of  the  convention. 

§  9.  The  first  draft  of  the  Constitution,  as 
reported  from  this  Committee  by  Mr.  Kutledge, 
their  chairman,  followed  the  form  and  arrange- 
ment of  the  SoutK-Carolina  Plan,  and,  in  many 
respects,  the  substance  also;  and  this,  not  unfre- 
quently,  in  preference  to  the  resolutions  which 
had  already  received  the  sanction  of  a  vote  of 
the  convention.  The  question,  how  far  the 


THE  GOVERNMENT.  35 

journal  copy  of  Mr.  Pinckney's  draft  is  strictly 
accurate,  is  not  here  entertained.  For  all  the 
purposes  of  this  general  comparison,  there  can 
be  no  doubt  but  it  is  sufficiently  so.  Mr.  Rut- 
ledge,  as  a  member  of  the  South-Carolina  dele- 
gation, had  acquiesced  at  least  in  the  introduction 
of  that  plan  which  went  by  their  name;  and,  as 
chairman  of  the  Committee  of  Detail,  had  doubt- 
less drawn  their  report,  which  he  presented. 
These  two  facts  would  very  naturally  account 
for  very  many  coincidences. 

§  10.  In  regard  to  the  first  sentence,  which 
we  are  now  examining,  the  Committee  of  Detail 
followed  the  South-Carolina  Plan  exactly.  Be- 
tween this  and  Mr.  Hamilton's,  besides  minor 
differences,  two  very  important  ones  will  be 
noted.  In  the  one,  the  people  of  the  individual 
States,  in  their  corporate  capacity  and  by  their 
corporate  name,  are  the  parties,  and  the  ordain- 
ing and  enacting  power,  —  "  We,  the  people  of 
New  Hampshire,"  &c. ;  and  "  the  following  Con- 
stitution," the  object.  In  the  other,  "  the  people 
of  the  United  States,"  in  their  corporate  capa- 
city and  by  their  national  name,  are  the  sole 
parties,  and  the  constituting  and  ordaining  pow- 
er, — w  We,  the  people  of  the  United  States ; " 
and  "  this  Constitution,"  the  object.  The  clause 
was  adopted  by  the  convention  without  opposi- 
tion, as  it  was  reported  by  the  Committee  of 
Detail  in  the  words  of  the  South-Carolina  Plan; 
and,  on  the  8th  of  September  following,  went, 


36  THE  GOVERNMENT. 

with  the  other  articles  agreed  to  by  the  conven- 
tion, to  the  Committee  of  Revision,  appointed 
"  to  revise  the  style  of,  and  arrange,  the  Articles 
agreed  to  by  the  House." 

§11.  This  committee  was  appointed  by  ballot, 
and  consisted  of  Messrs.  "William  Samuel  John- 
son, of  Connecticut;  Alexander  Hamilton,  of 
~NQW  York;  Gouverneur  Morris,  of  Pennsyl- 
vania; James  Madison,  of  Virginia;  and  Rufus 
King,  of  Massachusetts.  They  were,  individu- 
ally, strong  advocates  of  a  "firm  national  gov- 
ernment;" and,  as  a  body,  represented  more 
power,  wisdom,  and  statesmanship,  than  could 
have  been  collected  in  any  other  similar  body 
from  that  convention,  or  probably  elsewhere 
in  the  country.  It  is  not  to  be  presumed 
that  such  a  committee  was  intended  to  be 
tied  down  to  the  mere  duty  of  scriveners  and 
copyists. 

§  12.  In  regard  to  this  introductory  clause, 
they  departed  entirely  from  the  South-Carolina 
form,  which  had  been  copied  by  the  Committee 
of  Detail  and  accepted  by  the  convention,  and 
followed  Mr.  Hamilton's  draft  in  the  two  par- 
ticulars above  mentioned,  — "  the  people  of  the 
United  States  "  and  "  this  Constitution,"  instead 
of  "the  people  of  the  [individual]  States"  and 
"the  following  Constitution;"  and  then  substi- 
tuted the  words,  "  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defence, 


THE  GOVERNMENT.  37 

promote  the  general  welfare,  and  secure  the 
blessings  of  liberty,"  in  the  place  of  the  words, 
"  for  the  government,"  &c. ;  defining  the  business 
and  duties  of  the  government,  instead  of  leaving 
"  the  government "  undefined.  This  very  formal 
list  of  the  designs  and. purposes  of  the  people, 
and  the  objects  and  duties  of  their  government 
for  accomplishing  them,  has  not  been  found  in 
combination  anywhere  else. 

§  13.  The  leagues  and  confederacies  among 
the  colonies,  or  portions  of  them,  adopted  or 
proposed  in  the  years  1643,  1754,  1775,  and 
1781,  being  mere  treaties  between  political 
bodies  or  governments,  generally  endeavored  to 
provide  for  "  union  "  and  "  defence ;  "  but,  not 
being  made  by  "  the  people  "  for  their  own  bene- 
fit and  government,  said  little  about  "welfare," 
and  less  about  "  liberty,"  and  nothing  about 
"justice  "  or  "  tranquillity."  In  this  way  the  first 
sentence  of  the  Constitution  came  into  its  pres- 
ent form.  The  substitution  of  this  introductory 
and  enacting  clause,  in  the  place  of  the  titular 
prefix  reported  by  the  Committee  of  Detail,  is  a 
favorable  specimen  of  the  useful,  beneficial,  and 
liberal  manner  in  which  the  duty  of  the  Com- 
mittee of  Revision,  in  relation  to  "  style  and 
arrangement,"  was  understood  and  performed, 
The  change  was  entire,  and  must  be  presumed 
to  have  been  made  on  account,  and  for  the  sake, 
of  the  bearing  and  effect  it  had  on  the  charac- 
ter of  the  instrument  in  which  it  was  inserted; 


38  THE   GOVERNMENT. 

which  was,  of  course,  well  understood  by  the 
committee. 

§  14.  First,  It  made  w  the  people  of  the  United 
States,"  as  a  nation,  the  sole  party,  and  the 
enacting  authority  of  this  fundamental  law;  in- 
stead of  the  several  State  governments,  or  the 
people  of  the  several  States,  as  distinct  political 
bodies,  as  in  the  Confederation,  in  Mr.  Pinckney's 
draft,  and  in  the  Constitution  as  reported  by  the 
Committee  of  Detail.  This  change  has  been 
represented  as  merely  incidental,  made  only  to 
accommodate  another  alteration,  by  which  the 
Constitution  was  to  go  into  operation  when  rati- 
fied by  a  part  only  of  the  States.  Even  if  this 
were  true,  however,  it  would  not  alter  the  mean- 
ing or  construction  of  the  clause  as  it  stands. 
It  is  an  exact  and  plain  declaration,  that  the  in- 
strument when  adopted,  and  however  it  may 
be  adopted,  is  the  law  of  the  land  where  it  is 
adopted,  and  the  work  of  its  people.  But  the 
idea  on  which  the  suggestion  is  made  has  no 
foundation  in  fact.  Both  the  draft  of  Mr.  Pinck- 
ney,  and  the  Constitution  as  reported  by  the 
Committee  of  Detail,  which  followed  it  so  ex- 
actly in  this  clause  and  so  substantially  and 
formally  in  many  others,  contemplated  a  govern- 
ment independent  of  the  unanimous  consent  of 
all  the  States,  as  decidedly  as  did  Mr.  Hamilton's. 
One  of  the  States  was  not  even  represented  in 
the  Convention;  and  nobody  was  so  sanguine 
as  to  expect  the  unanimous  concurrence  of  the 


THE  GOVERNMENT.  39 

whole  thirteen  before  the  inauguration  of  the 
experiment,  if  at  all. 

§  15.  Second,  It  specified,  under  six  heads,  all 
the  purposes  and  objects  which  the  people  re- 
quired to  be  accomplished  by  the  administration 
and  execution  of  their  Constitution,  covering 
all  the  duties  of  the  most  perfect  government 
for  the  nation;  viz.,  "to  form  a  more  perfect 
union,  establish  justice,  insure  domestic  tranquil- 
lity, provide  for  the  common  defence,  promote 
the  general  welfare,  and  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity,"  —  instead 
of  saying,  as  in  the  former  draft,  "for  the  gov- 
ernment of  ourselves  and  posterity,"  without 
indicating  the  principles  and  objects  by  which  it 
was  to  be  guided,  and  the  ends  it  was  required 
to  accomplish. 

§  16.  Third,  It  "  ordained  and  established  this 
Constitution,"  including  this  introductory  clause, 
making  it  a  part  of  the  supreme  law  of  the  land, 
instead  of  leaving  it  outside,  as  in  the  original 
draft,  as  a  mere  title  or  prefix  to  "  the  following 
Constitution,"  from  which  it  was  excluded. 

§  17.  Fourth,  It  was  "for  the  United  States 
of  America,"  —  the  whole  nation  exclusively,  — 
and  not  for  sections,  states,  or  any  component 
parts  of  the  nation  particularly.  All  its  powers 
were  conferred  by  the  people  themselves,  to  be 
exercised  on  themselves,  for  their  own  purposes, 
by  their  own  authority,  by  their  own  agents,  and 
for  their  own  benefit. 


40  THE   GOVERNMENT. 

§  18.  In  reference  to  the  broad  declaration  of 
this  substituted  clause,  that  the  purposes  of  the 
people  embraced  nothing  less  than  the  "  common 
defence  and  general  welfare,"  it  may  be  useful 
to  bear  in  mind  a  few  dates.  These  familiar 
words  found  no  place  in  any  part  of  the  Consti- 
tution till  September  the  4th,  just  eleven  days 
before  the  final  order  for  its  engrossment  as 
amended.  They  then  stood  at  the  head  of  the 
section  devoted  to  certain  powers  of  Congress, 
in  this  precise  form  and  connection:  "to  lay 
and  collect  taxes,  duties,  imposts,  and  excises; 
to  pay  the  debts,  and  provide  for  the  common 
defence  and  general  welfare  of  the  United 
States;  to  regulate  commerce,"  &c.,  &c.  Four 
days  afterwards,  Sept.  8,  all  the  Articles  agreed 
upon  went  into  the  hands  of  the  Committee  of 
Revision  for  a  new  draft.  In  four  days  more, 
Sept.  12,  that  committee  reported  the  revised 
draft,  leaving  the  beginning  of  the  8th  section 
precisely  as  above  written,  with  the  exception  of 
inserting  the  power  "to  borrow  money,"  &c., 
above  the  power  "to  regulate  commerce,"  &C.,1 
and  altering  the  introductory  clause  as  it  now 
stands.  Both  were  agreed  to  by  the  convention, 
so  far  as  appears,  without  objection.  Though 
they  passed  without  opposition,  it  is  evident  they 
did  not  pass  sub  silentio  and  without  exami- 
nation, because  the  very  minute  criticism  of 
striking  out  the  sign  of  the  infinitive  mode  (to) 

1  See  2  Story's  Com.  371,  and  Journal  of  the  Convention. 


THE  GOVERNMENT.  41 

before  the  words  w  establish  justice,"  was  adopted 
by  a  divided  vote  of  eight  States  against  two. 
!Nb  other  alteration  in  either  was  authorized  by 
vote  of  the  convention,  before  or  after  the  en- 
grossment, except  to  amend  the  first  clause  of  the 
8th  section  by  adding  the  words,  "  but  all  duties, 
imposts,  and  excises  shall  be  uniform  throughout 
the  United  States."  This  was  done  on  the  14th, 
the  day  before  the  engrossment. 

§  19.  The  clauses  were  not  then  numbered,  as 
they  have  since  been  without  authority;  but  the 
first  clause,  as  now  numbered,  was  divided  by 
a  semicolon  and  a  break  between  the  words 
"  excises "  and  "  to  pay,"  in  the  same  manner 
that  the  whole  is  divided  from  the  next,  and  all 
the  other  clauses  are,  and  then  were,  separated 
from  each  other.  This  part  of  the  Journal  was 
so  defectively  kept  originally,  and  so  mutilated 
afterwards,  as  to  make  it  impossible  to  decide 
exactly  what  the  vote  was  by  which  the  last 
addition  was  made.  Mr.  Madison  says  the  words 
"were  unanimously  annexed  to  the  power  of 
taxation."1  If  he  may  be  supposed  to  have 
been  precisely  correct  in  his  language,  the  vote 
was  to  insert  the  addition  at  the  end  of  the  first 
line,  after  the  word  "  excises,"  so  as  to  make  the 
first  clause  read,  "  to  lay  and  collect  taxes,  duties, 
imposts,  and  excises;  but  all  duties,  imposts, 
and  excises  shall  be  uniform  throughout  the 
United  States : "  leaving  the  words  "  to  pay 

1  See  3  Madison  Papers,  in  loc. 


42  THE   GOVERNMENT. 

the  debts,  and  provide  for  the  common  defence 
and  general  welfare  of  the  United  States,"  to 
constitute,  as  they  did  before,  and  as  the  words 
"  to  borrow  money,"  &c.,  still  do,  a  separate  line 
or  clause.  Neither  the  words,  the  order,  nor  the 

< 

punctuation  were  altered  by  any  other  vote  of 
the  convention;  and  it  is  perfectly  manifest, 
from  the  promptness  and  unanimity  with  which 
it  was  made,  without  discussion  or  examination, 
that  no  thought  was  entertained  of  producing 
the  least  alteration  in  the  force  and  effect  of  the 
clause  as  it  stood  before.  If  the  addition  was 
intentionally  placed  where  it  now  stands,  it  in- 
volved the  necessity  of  throwing  the  whole  into 
one  clause,  as  it  now  is;  because  the  addition 
referred  exclusively  to  the  first  line,  and  not  at 
all  to  the  second.  In  that  case,  the  necessity, 
whether  recognized  by  the  convention  or  not, 
must  govern  the  result. 

§  20.  In  this  manner,  "the  common  defence 
and  general  welfare  "  came  first  into  the  Consti- 
tution, as  a  part  of  the  power  of  Congress,  in 
the.  8th  section,  on  the  4th  of  September;  and 
were  afterwards  repeated  by  the  Committee 
of  Revision  among  the  great  purposes  and 
avowed  objects  of  the  people  in  ordaining  the 
Constitution,  and  establishing  the  governmental 
machinery  by  which  they  were  to  be  accom- 
plished and  executed.  In  both  places  and 
forms,  they  were  unanimously  accepted  by  the 
convention;  and  neither  the  printed  Journal, 


THE  GOVERNMENT.  43 

Madison  Papers,  nor  tradition  afford  any  evi- 
dence that  they  called  forth  a  single  disparaging 
remark,  in  regard  to  their  substance  or  effect, 
from  any .  member  of  the  convention.  In  some 
of  the  State  conventions,  the  words  w  We,  the 
people,"  —  the  effect  of  which  seems  to  have 
been  well  understood,  —  were  made  the  occasion 
of  discussing  the  great  principle  of  a  national 
Constitution,  as  distinguished  from  a  Confedera- 
tion. This  question  having  been  thoroughly 
discussed,  and  early  settled  in  the  general  con- 
vention, was  not  again  referred  to  in  the  adoption 
of  this  introductory  clause.  Neither  was  this 
clause  discussed  at  all  before  the  people. 

§  21.  The  Constitution,  from  the  beginning, 
was  placed  on  the  defensive.  A  few  general 
principles  being  well  understood  and  thoroughly 
established,  —  such  as  the  absolute  necessity 
of  union  and  government,  &c.,  —  it  followed,  of 
course,  that  the  only  plan  proposed,  or  likely  to 
be  proposed,  must  be  accepted,  unless  there  were 
insuperable  objections  to  it.  The  objections, 
therefore,  became  the  prominent  subjects  of  the 
discussion;  and  those  parts  of  the  Constitution 
which  were  overlooked  by  its  opponents,  or 
failed  to  encounter  their  maledictions,  were 
neither  developed  nor  expounded  by  its  friends. 
This  sentence  was  a  mere  substitute  for  one  that 
never  was  adopted  or  intended  to  be  in,  or  con- 
stitute a  part  of,  the  Constitution  at  all,  and  was 
not  itself  reported  for  a  part  of  it  till  September 


44  THE   GOVERNMENT. 

the  12th.  It  was  then  considered  and  amended 
on  the  13th,  by  striking  out  two  letters  of  no 
significance,  and  adopted  unanimously  on  the 
14th;  and,  on  the  15th,  the  whole  instrument 
had  been  re-examined,  sentence  by  sentence, 
discussed,  altered,  amended,  and  accepted  in 
detail,  and  the  whole  work  completed  by  Satur- 
day night,  so  as  to  be  engrossed  by  Monday 
morning,  when  it  was  signed,  and  the  conven- 
tion forthwith  adjourned  sine  die. 

§  22.  Having  thus  escaped  opposition  in  the 
convention,  it  excited  little  attention  afterwards. 
Even  the  important  fact  that  it  was  actually  in 
the  Constitution,  and  not  left  outside  as  its 
predecessors  had  been,  and  would  become,  if 
adopted,  obligatory  as  a  part  of  the  supreme  law 
of  the  land,  does  not  appear  ever  to  have  been 
publicly  alluded  to  by  friend  or  foe.  The  able 
writers  of  the  w  Federalist,"  who  made  the  fullest 
analysis  of  the  Constitution,  were  always  careful 
to  remember,  and  uniformly  cautious  to  perform, 
their  duty  as  advocates.  They  never  for  a  mo- 
ment lose  sight  of  the  well-known  nature  and 
popular  character  of  all  the  objections  against 
which  they  were  called  upon  to  defend  the  Con- 
stitution. Their  work,  like  all  others  in  favor 
of  the  Constitution,  is  studiously  defensive,  and 
definitively  apologetic  throughout,  and  never 
indulges  in  the  discovery  or  development  of 
any  powers  or  capabilities  which  had  not  previ- 
ously been  searched  out,  and  made  the  occasion 


THE   GOVERNMENT.  45 

of  antagonistic  discussion  by  its  adversaries. 
Though  the  two  principal  authors  of  the  work 
had  been  members  of  the  convention  and  of  the 
Committee  of  Revision,  by  whom  this  final  draft 
had  been  made,  and  this  sentence  placed  as  the 
chief  corner-stone  of  the  Constitution;  yet  only 
two  instances  have  been  noted,  in  the  whole 
work,  where  even  the  existence  of  this  enacting 
clause  is  alluded  to,  notwithstanding  the  intimate 
connection  of  both  with  the  precise  form  and 
peculiar  manner  in  which  it  was  substituted  for 
the  original  one  of  a  totally  different  character 
and  purport.  The  first  is  in  the  41st  number, 
where  Mr.  Madison  says,  "  Security  against  for- 
eign danger  ...  is  an  avowed  and  essential 
object  of  the  American  Union."  That  the 
"  common  defence "  is  an  essential  object  and 
duty  of  the  government,  may  be  satisfactorily 
proved  independently  of  this  clause;  but,  as  it  is 
nowhere  else  actually  w  avowed  "  as  such  by  the 
American  people,  the  allusion  is  evidently  to 
the  words  of  this  clause.  The  other  instance 
is  in  the  84th  number,  where  Mr.  Hamilton, 
after  reciting,  under  quotation  marks,  "  We, 
the  people  of  the  United  States,  to  secure  the 
blessings  of  liberty  to  ourselves  and  our  posteri- 
ty, do  ordain  this  Constitution  for  the  United 
States  of  America,"  says,  w  This  is  a  better  re- 
cognition of  popular  rights  than  volumes  of 
those  aphorisms  which  make  the  principal  figure 
in  several  of  our  State  Bills  of  Rights."  These 


46  THE   GOVEENMENT. 

two  allusions,  though  the  only  ones  of  their 
authors  to  the  first  clause  of  the  Constitution, 
are  sufficient  to  evince  their  appreciation  of  the 
magnitude  and  importance  of  its  contents  in 
the  general  fabric  of  the  government. 

§  23.  But  it  is  always  to  be  remembered,  that 
the  opinions  and  writings  of  individuals,  com- 
mittees, or  conventions  are  not  the  Constitu- 
tion. That  was  ordained  and  established  by  the 
people  of  the  United  States  exclusively.  What 
they  meant  and  intended  by  it  is  the  Constitu- 
tion, —  the  fundamental  and  supreme  law  of  the 
land,  and  is  to  be  ascertained  only  from  them- 
selves, and  by  what  they  did;  that  is,  by  what 
they  placed  and  left  on  record  for  the  special 
purpose  of  making  their  meaning  known.  They 
meant  exactly  and  only  what  they  said ;  or,  what 
is  the  same  thing  so  far  as  others  are  concerned, 
if  they  meant  any  thing  different,  it  can  never 
be  legally  proved  or  known  by  anybody. 


CHAPTER   III. 

WE,  THE  PEOPLE. 

§  24.  LET  us  proceed  to  analyze  this  first  or 
enacting  clause.  The  first  three  words,  "we, 
the  people,"  announce  the  sole  parties  and 
agents  by  whom  the  law  was  ordained,  and  the 
authority  and  power  on  which  it  rests.  The 
will  of  the  people  is  the  only  source  of  human 
power,  which  neither  invites  nor  admits  of  any 
vindication.  All  governments,  however  founded, 
ultimately  resort  to  it  for  support,  and  must  fail 
whenever  they  are  repudiated  by  it.  "Sover- 
eignty resides  originally  in  the  people,"  says 
Burlamaqui.  "  The  sovereignty  or  sovereign 
power,  in  every  state,  resides  ultimately  in  the 
body  of  the  people "  (Sharswood's  "  Black- 
stone  ") .  And  Vattel  says,  sovereignty  "  is  that 
public  authority  which  commands  in  civil  so- 
ciety. This  authority  belonged,  originally  and 
essentially,  to  the  body  of  the  society."  Fraud 
or  force,  precedent  or  accident,  may  confer 
power,  or  sustain  it  for  a  season,  under  favorable 
circumstances,  though  established  without  right; 

[47] 


48  WE,   THE  PEOPLE. 

but,  if  not  supported  by  the  physical  power  of 
the  last  resort,  must  ultimately  yield,  whenever 
the  will  and  power  of  the  people  are  brought 
authoritatively  to  bear  against  it.  This  is  the 
only  absolute  and  inalienable  sovereignty, — 
the  controlling  power  in  the  last  resort,  under 
whatever  form  of  government. 

§  25.  The  terms  imply  unity,  —  aggregate  or 
corporate  unity,  —  which,  in  the  case  of  a  whole 
people,  is  nationality.  The  unity  or  nationality 
of  a  whole  people  involves  individuality,' equality, 
and  independence  among  the  nations,  and  sover- 
eignty or  uncontrollable  power  in  the  last  resort 
among  themselves.  These  first  words  of  the 
Constitution,  therefore,  "we,  the  people,"  au- 
thoritatively assume  the  integrity  or  unity,  the 
nationality,  independence,  and  sovereignty  of 
the  people.  These  ideas  were  none  of  them 
thought  to  require  either  elucidation,  exhibition, 
vindication,  or  even  assertion;  but  are  quietly 
assumed  and  acted  upon,  in  the  simple  formu- 
lary, "  we,  the  people,"  which  includes  them  all. 

§  26.  The  people,  then,  are  a  nation.  They 
became  such  by  separating  themselves  from  the 
nationality  of  Great  Britain,  —  first  temporarily, 
in  1774,  when  they  formed  their  Union,  by 
which  they  became  "  one  people,"  a  body  politic, 
though  only  for  the  single  purpose  of  defending 
their  rights  and  liberties,  which  they  hoped  and 
expected  would  be  speedily  accomplished,  and 
then  their  former  position  resumed;  afterwards 


WE,  THE  PEOPLE.  49 

permanently,  in  1776,  by  their  Declaration  of 
Independence,  absolute  and  final.  Under  the 
former,  they  levied  and  carried  on  war;  raised, 
equipped,  and  supported  armies  and  navies; 
regulated  commerce  with  foreign  nations;  sup- 
pressed among  themselves  the  authority  of  the 
British  crown  and  parliament;  and  performed 
many  other  acts  of  unequivocal  nationality  and 
sovereignty.  By  the  Declaration  of  1776,  they 
confirmed  their  position  as  "  one  people,"  united, 
independent,  and  sovereign,  and  rendered  it  per- 
petual and  irrevocable;  absolving  themselves 
w  from  all  allegiance  to  the  British  crown,"  and 
dissolving  "  all  political  connection  between  them 
and  the  State  of  Great  Britain;"  and  assuming 
"  full  power  to  levy  war,  conclude  peace,  contract 
alliances,  establish  commerce,  and  to  do  all  other 
acts  and  things  which  independent  States  may 
of  right  do."  Thus  the  "  good  people  "  became, 
by  the  formal  act  of  their  "Representatives  in 
Congress  assembled,"  in  the  language  of  the. 
Declaration,  permanently  "  one  people,"  a  nation, 
w  a  free  people,"  "  independent,"  and,  of  course, 
sovereign. 

§  27.  The  words,  "we,  the  people,"  in  the 
Constitution,  re-affirm,  in  effect,  all  these  par- 
ticulars in  the  Declaration,  —  union,  nationality, 
independence,  and  sovereignty.  They,  however, 
necessarily  suggest  the  question,  Who  are  the 
people?  who  constitute  the  nation?  who  are 
the  actual  members  of  the  body  politic,  its 


50  WE,   THE  PEOPLE. 

component  materials?  Prior  to  1774,  they  were 
all  his  Britannic  Majesty's  subjects,  inhabiting  a 
certain  locality,  claiming  the  rights  of  native- 
born  subjects,  and  all  the  liberties  of  the  British 
Constitution;  and  were  professedly  governed  as 
such.  For  the  avowed  and  sole,  but  as  they 
supposed  temporary,  purpose  of  a  mutual  de- 
fence of  those  rights  and  liberties,  they  became, 
by  their  own  act,  the  "  United  Colonies  of  Amer- 
ica." Under  this  organization  and  the  authority 
of  the  Continental  Congress,  "  the  people  "  car- 
ried on  a  defensive  war  against  the  aggressions 
of  Great  Britain,  and  did  all  other  necessary 
acts  of  independent  nationality  and  sovereignty,1 
till  1776.  On  the  fourth  day  of  July  of  that 
year,  by  the  "  Declaration  of  Independence,"  the 
"  Delegates  of  the  United  Colonies,  ...  in  the 
name  and  by  the  authority  of  the  good  people  " 
thereof,  became  "  the  Representatives  of  the 
United  States  of  America,"  and  solemnly  de- 
plared  them  to  be  "  free  and  independent,"  and 
entitled  to  "  do  all  acts  and  things  "  which  other 
independent  nations  have  a  right  to  do;  which 
necessarily  includes  all  power,  external  and  in- 
ternal, implied  in  the  absolute  sovereignty  of 
nations.  In  this  manner  they  assumed  perma- 
nently an  equal  station  among  the  nations  of 
the  earth.  The  several  constituencies,  in  their 

1  Nov.  1, 1775,  Congress  "  Resolved  that  no  produce  of  the  United 
Colonies  be  exported  .  .  .  before  the  first  day  of  March  next,  without  the 
permission  or  order  of  this  Congress." 


WE,  THE  PEOPLE.  51 

separate  local  organizations,  had  authorized  their 
respective  delegates  to  unite  in  this  general  Dec- 
laration; 1  but  none  of  them  had  ever  intended  to 
make,  or  attempt  to  maintain,  such  a  declaration 
on  their  own  individual  account,  or  sought  any 
independence -of  each  other.  They  all  united  in 
this  aggregate  Declaration,  "  in  the  name  of  all 
the  good  people,"  of  their  independence  of  Great 
Britain,  and  all  the  world  beside,  but  remained 
united  among  themselves ;  and  so  became  perma- 
nently a  body  politic,  an  aggregate  nation,  and 
the  separate  colonies  thereby  subordinate  por- 
tions of  the  new  American  State,  as  they  had 
been  before  of  the  "State  of  Great  Britain." 

§  28.  Nothing  would  appear  more  reasonable 
or  certain  than  that,  by  this  act,  the  whole  na- 
tional sovereignty,  the  absolute  right  to  govern 
in  the  last  resort,  the  real  succession  to  the 
British  crown  and  government,  descended  and 
remained  upon  the  people  of  the  United  States 
as  a  nation;  and  the  component  parts  took  and 
retained,  as  they  had  before,  such  subordinate 
position  as  suited  the  real  sovereign  to  confer  or 
acquiesce  in.  The  separate  colonies,  or  the  indi- 
vidual states,  do  not  speak,  and  are  not  men- 
tioned in  the  Declaration;  nor  is  the  Declaration 
signed  by  delegates  from  the  separate  colonies, 
representing  local  districts,  and  binding  their 
local  constituencies,  but  is  signed  first  by  the 
President,  and  then  by  all  the  members  promis- 
cuously, in  a  mass,  as  the  K  Representatives  of 

1  See  note  at  the  end  of  this  chapter. 


52  WE,  THE  PEOPLE. 

the  United  States  of  America,"  —  the  nation,  as 
they  announce  themselves  to  be  in  the  body  of 
the  paper;  and  the  whole  people  are  uniformly 
represented  as  w  one  people  "  acting  together  as 
a  body  corporate,  —  a  nation,  a  "  free  people,"  — 
whom  the  king  is  "  unfit "  to  govern.  They  dis- 
solve their  connection  with  Great  Britain,  and 
assert  their  "full  power  to  levy  war,  conclude 
peace,  contract  alliances,  establish  commerce, 
and  do  all  other  acts  and  things  which  independ- 
ent states  may  of  right  do ; "  which  includes,  of 
course,  the  establishment  or  continuance  of  sub- 
ordinate institutions,  and  whatever  else  the  Brit- 
ish government  had  rightfully  done,  or  any  other 
legitimate  government  could  so  do. 

§  29.  This  was  not  only  the  theory  of  our 
system  from  the  beginning,  but  the  practice  was 
in  conformity  to  it,  as  well  before  as  after  our 
national  position  became  permanent  by  the  De- 
claration of  1776.  Our  local  governments  were 
all  of  them  formed  and  administered,  after  the 
renunciation  of  the  king's  authority,  by  the  ex- 
press advice  and  sanction  of  the  Congress, — 
first  of  the  United  Colonies,  and  then  of  the 
United  States.  Governments  so  formed  could 
have  no  rightful  power  to  act  in  derogation  of 
the  general  sovereignty  of  the  nation  under 
which  they  were  organized,  any  more  than  the 
present  local  governments  could  repudiate  or 
counteract  the  Constitution  and  government  of 
the  United  States,  in  subordination  to  which 


\ 


WE,  THE  PEOPLE.  53 

only  do  they  exist  as  political  bodies,  as  govern- 
ments, and  by  whose  authority  and  power  only 
they  are  sustained  and  defended.1  Nevertheless 
they  did  so  act,  both  under  the  Revolutionary 
government  and  under  the  Confederation,  till 
the  general  government  was  well-nigh  extinct 
from  its  own  weakness,  and  the  Union  itself  was 
at  the  point  of  absolute  and  final  dissolution,  — 
as  it  has  more  recently  been  for  a  second  time 
from  a  similar  cause,  and  will  be  very  likely  to 
be  again,  if  an  independent  right  to  govern  is 
accorded  to  the  parts  in  opposition  to  the  whole, 
instead  of  under  and  by  virtue  of  the  supreme 
law  of  the  land,  and  in  subordination  to  the  para- 
mount authority*  of  the  Constitution  and  laws 
of  the  United  States.  It  was  under  such  circum- 
stances that  the  nation  felt  itself  called  upon  and 
compelled  to  renovate  and  cement  anew  the  per- 
ishing bonds  of  their  inestimable  Union. 

§  30.  Who  were  "  the  people  "  at  the  time  of 
the  Declaration  of  Independence,  was  settled 
by  act  of  the  same  Congress  which  made  that 
Declaration.  On  the  twenty-fourth  day  of  June, 
1776,  they  resolved,  "  That  all  persons  abiding 
within  any  of  the  United  Colonies,  and  deriving 
protection  from  the  laws  of  the  same,  owe  alle- 
giance to  the  said  laws,  and  are  members  of  such 
colony." 2  That  "  all  persons "  means  every- 

1  "  As  if  the  rod  should  shake  itself  against  them  that  lift  it  up." 

2  The  Resolution  of  Independence,  in  the  form  finally  adopted  and 
embraced  in  the  Declaration,  was  first  moved  in  Congress,  June  7,  1770. 
It  was  taken  up  for  consideration  the  next  day,  June  8,  and  referred  to 


54  WE,   THE  PEOPLE. 

body,  without  distinction,  requires  no  argument. 
That  "  abiding  "  here  means  permanently  resid- 
ing or  inhabiting,  is  evident  from  the  different 
provision  immediately  following,  which  relates  to 
persons  "passing  through,  visiting,  or  making  a 
temporary  stay  in  any  of  said  colonies."  This 
must  have  operated  as  a  complete  naturalization 
law  for  every  person  who  then  was,  or  after- 
wards became,  an  abiding  resident  of  the  coun- 
try, whether  born  within  the  king's  allegiance,  or 
an  alien  of  foreign  birth.  It  applied  equally  to 
subsequent  as  well  as  prior  inhabitants,  because 
the  object  was  to  hold  all  such  persons  to  the 
penalties  of  violated  allegiance,  in  case  they 
proved  unfaithful  to  the  Union.  Such,  doubt- 
less, continued  to  be  the  law,  until,  under  the 
Articles  of  Confederation,  in  1781,1  Congress 
practically  relinquished  their  jurisdiction  over 

a  Committee  of  the  Whole.  June  10,  it  was  discussed  in  committee, 
passed,  and  reported  to  the  House,  where  the  further,  consideration  of  it 
was  postponed  to  July  1 ;  but,  by  way  of  preparation  for  its  passage  in 
the  House,  it  was  resolved  to  appoint  a  committee  to  draft  a  Declaration 
in  formj  to  accompany  it  when  published  to  the  world.  This  committee 
was  appointed  the  next  day,  June  11,  and  reported  their  draft,  June  28, 
to  the  House.  July  1,  the  Resolution  and  Declaration  were  considered 
together  in  Committee  of  the  Whole ;  and  debated  and  amended,  day 
after  day,  till  July  4,  when  they  were  finally  reported  to  the  House, 
agreed  to,  engrossed,  and  signed  by  the  members.  So  that  the  Resolution 
of  Citizenship,  of  June  24,  was  passed  after  the  Resolution  of  Indepen- 
dence had  been  decjded  upon  in  Committee  of  the  Whole,  and  was  wait- 
ing the  preparation  of  the  formal  Declaration  for  its  final  passage  in  the 
House. 

1  This  Confederation  was  the  work  of  the  State  governments ;  and, 
while  maintaining  their  own  separate  sovereignty  and  independence, 
they  nominally  delegated  to  the  United  States  in  Congress  assembled 
the  principal  rights  and  duties  of  sovereignty,  and,  at  the  same  time, 
denied  them  the  requisite  powers  for  executing  it. 


WE,   THE   PEOPLE.  55 

the  subject,  and  each  State  made  its  own  rules 
of  naturalization.  How  far  this  law  was  subse- 
quently altered  in  any  of  the  States,  before  the 
jurisdiction  was  again  restored  to  the  United 
States  by  the,  Constitution  of  1788,  has  not  been 
ascertained ;  but,  obviously,  all  who  acquired  citi- 
zenship iinder  it  before  it  was  repealed  in  any 
State  (if  it  ever  was  so),  all  who  were  admitted 
'under  State  laws,  and  all  who  had  acquired  citi- 
zenship by  birthright  in  the  land,1  were  members 
of  the  nation  by  and  for  whom  the  Constitution 
was  made  and  adopted  in  1788.  It  calls  them 
repeatedly,  "  people  of  the  United  States,"  "  peo- 
ple of  the  several  States,"  "citizens  of  the  United 
States,"  "  inhabitants  of  a  State,"  "  citizens  of 
diiferent  States,"  "citizens  of  each  State,"  and 
"  the  people  "  generally,  —  meaning  in  every  in- 
stance the  same  persons,  who  are  called,  in  the 
Resolution  of  1776,  "members"  of  the  body 
politic;  and  in  the  Constitution,  Article  I.,  Sec- 
tion 2,  the  "free  persons,"  and  "  all  other  persons 
except  Indians  not  taxed,"  according  to  whose 
numbers  the  representatives  and  direct  taxes  are 
to  be  apportioned. 

§  31.  It  was  not  the  particular  object  of  the 
Congress  of  1776  to  confer  the  rights  of  citi- 

1  "  Every  person  born  in  the  country  is,  at  the  moment  of  birth, 
prima  facie  a  citizen ;  and  he  who  would  deny  it  must  take  upon  himself 
the  burden  of  proving  some  great  disfranchisement  strong  enough  to 
override  the  '  natural-born '  rights  as  recognized  by  the  Constitution  in 
terms  the  most  simple  and  comprehensive,  and  without  any  reference  to 
race,  color,  or  any  other  accidental  circumstance."  —  Attorney-General 
Bates's  Opinion  on  Citizenship,  Nov.  29,  1862. 


56  WE,   THE  PEOPLE. 

zenship,  but  it  was  their  object  to  declare  who 
should  be  liable  to  its  burdens  and  duties;  and, 
by  doing  the  one,  they  incidentally  did  the  other 
also,  for  the  rights  and  duties  must  go  together. 
So  it  was  not  the  particular  object  of  our  Con- 
stitution (Section  2)  to  confer  or  to  declare  the 
right  of  citizenship;  but  it  was  their  object  to 
apportion  the  Representatives  and  direct  taxes 
among  the  citizens,  "  the  people  of  the  several 
States,"  .  .  .  "  according  to  their  respective 
numbers."  And,  in  deciding  who  should  and 
who  should  not  be  enumerated  in  ascertaining 
those  "numbers,"  it  necessarily  decided  who 
were  and  who  were  not  those  citizens,  —  "the 
people  of  the  several  States."  Individuals  can- 
not be  citizens  and  not  citizens  at  the  same  time. 
If  they  are  citizens  for  the  purpose  of  ascertain- 
ing the  rights  and  duties  of  others,  they  are 
equally  so  for  the  purpose  of  settling  their  own. 
People  and  citizens  are  synonymous,  and  include 
all  the  members  of  the  body  politic,  the  repre- 
sentative body  of  the  nation,  "  the  people  of  the 
several  States."  "Free  persons"  and  "other 
persons "  are  all  persons,  whatever  may  be  the 
meaning  of  the  word  "free."  If  anybody  can 
be  excluded  from  both  classes,  it  must  be  done 
by  some  governing  principle  of  law,  of  sufficient 
force  and  extent  to  limit  and  control  the  obvious 
universality  of  the  words  used. 

§  32.  It  is  said  that  aliens  are  excluded,  be- 
cause that,  being  citizens  and  owing  allegiance 


WE,   THE  PEOPLE.  57 

to  a  foreign  government,  they  cannot  perform 
the  incompatible  duties  of  allegiance  to  this. 
Besides,  the  government,  being  republican,  must 
necessarily  be  in  the  hands  of  the  people  exclu- 
sively; and  any  participation  of  unnaturalized 
aliens  in  the  rights  of  representation  and  suf- 
frage would  be  inconsistent  with  the  nature  of 
the  government.  It  is  inconceivable  that  the 
American  people  should  have  intended  to  author- 
ize unnaturalized  foreigners,  in  any  way,  to 
augment  or  influence  the  representative  power 
of  any  portion  of  the  people;  and  it  is  equally 
inconceivable  that  they  should  have  intended,  in 
this  way,  to  naturalize  all  such,  and  confer  on 
them  the  rights  of  citizens,  seeing  they  have 
expressly  provided  another  mode  for  the  pur- 
pose. It  is  therefore  probably  true  that  aliens 
cannot  be  counted,  either  as  "  free  persons "  or 
"  other  persons,"  in  apportioning  Representatives 
to  "  the  people  of  the  several  States." 

§  33.  It  is  also  said  that  slaves  are  excluded, 
not  because  they  do  not  belong  here  or  do  be- 
long anywhere  else,  but  because  they  are  them- 
selves property,  and  not  persons,  or  capable  of 
holding  any  personal  right.  Citizenship  —  mem- 
bership of  the  nation,  the  body  politic,  being  a 
component  part  of  the  people  —  is  a  franchise, 
a  right  conferred  and  guarantied,  by  the  very 
existence  of  the  nation,  on  all  who  compose  it. 
"  Every  citizen  of  the  United  States  is  a  compo- 
nent member  of  the  nation,  with  rights  and 


58  WE,  THE  PEOPLE. 

duties,  under  the  Constitution  and  laws  of  the 
United  States,  which  cannot  be  destroyed  or 
abridged  by  the  laws  of  any  particular  State. 
The  laws  of  the  State,  if  they  conflict  with  the 
laws  of  the  nation,  are  of  no  force.  ...  A  citi- 
zen of  the  United  States,  whether  by  birth  or 
naturalization,  holds  his  franchise  by  the  laws  of 
the  United  States,  and  above  the  control  of  any 
particular  State.  .  .  .  "Whoever  has  that  fran- 
chise is  a  whole  citizen,  and  a  citizen  of  the 
whole  nation,  and  cannot  be  such  citizen  in  one 
State,  and  not  in  another." l 

§  34.  The  people  of  the  United  States,  in 
making  their  Constitution,  do  not  create  or  con- 
fer on  themselves  any  new  rights,  but  they 
expressly  reserve  all  the  rights  they  then  held, 
except  what  were  delegated  for  their  own  bene- 
fit; and  they  particularly  and  expressly  recog- 
nize and  perpetuate  many  natural  and  civil 
common-law  rights,  which,  of  course,  are  placed 
beyond  the  reach  of  any  subordinate  govern- 
ment, and  even  of  their  own.  Among  these  are 
the  following :  — 

1.  The  right  to  be,  what  they  call  themselves, 
"  the  people  of  the  United  States,"  citizens,  and 
component  members  of  the  body  politic,  —  the 
nation;  and  to  participate  in  all  the  privileges, 
immunities,  and  benefits  the  Constitution  was 
designed  to  obtain  or  secure  for  all  the  Ameri- 
can people,  especially  the  right  to  be  protected 

1  Attorney-General  Bates's  Opinion  on  Citizenship,  Nov.  29,  1862. 


WE,  THE  PEOPLE.  59 

and  governed  according  to  the  provisions  of  the 
Constitution. 

2.  A  right  to  the  privileges  and  immunities 
of  citizens  in  any  of  the  several  States.     Among 
these  is  the  fundamental  and  elementary  right 
of  suffrage.    The  Representatives  to  the  national 
and  State  legislatures  must  be  chosen  by  the 
people,  the  citizens  (Section  2).     Consequently, 
the  citizens  must  choose  them,  and  have  a  right 
to  choose  them. 

3.  A  right  to  the  common-law  writ  of  habeas 
corpus,  to  protect  the  other  common-law  right, 
as  well  as  natural  and  constitutional  right,  of 
personal  liberty. 

4.  A  right  to  trial  by  jury  in  any  criminal 
case. 

5.  A  right  to  keep  and  bear  arms. 

6.  A  right  to  life,  liberty,  and  property,  unless 
deprived  by  due  process  of  law. 

7.  A  right  to  just  compensation  for  private 
property  legally  taken  for  public  use. 

8.  A  right  to  participate  in  all  rights  retained 
by,  or  reserved  to,  the  people. 

Most  of  these  rights,  with  many  others,  belong 
by  the  Constitution  not  only  to  the  citizens,  — 
the  people  of  the  United  States,  strictly  so 
called,  by  reason  of  the  franchise  of  natural  birth 
or  otherwise,  —  but  also  to  all  persons  who  may 
be  allowed  to  be  and  remain  under  the  jurisdic- 
tion and  protection  of  our  government.  These 
are  a  part  only  of  the  rights  held  by  every 


60  WE,  THE  PEOPLE. 

member  of  the  nation,  under  and  by  virtue  of 
the  Constitution  of  the  United  States,  independ- 
ent of  any  other  earthly  power,  and  which,  of 
course,  "  cannot  be  destroyed  or  abridged  by  the 
laws  of  any  particular  State."  Who,  then,  in 
the  United  States  is  destitute  of  rights? 

§  35.  A  slave,  being  property,  and  incapable  of 
holding  any  right,  cannot,  of  course,  be  a  citizen ; 
because  the  franchise  itself  is  incompatible  with 
his  condition,  and,  if  he  could  hold  it,  would 
contradict  his  status  as  a  slave.  Slaves,  there- 
fore, cannot  be  citizens.  The  moment  slaves  or 
aliens  are  included  in  the  catalogue  of  "people 
of  the  several  States,"  and  counted  as  a  part  of 
them,  either  as  units  or  fractions,  they  become 
a  part  of  the  people, —  citizens,  and,  of  course 
are  absolved  from  all  the  disabilities  of  alienage 
or  slavery. 

§  36.  But  before  any  can  be  excluded  on 
the  ground  of  slavery,  it  must  be  shown  that 
such  a  class,  by  virtue  of  constitutional  laws, 
existed  in  1788,  and  how  it  was  composed,  and 
that  its  continued  existence  since,  under  the 
Constitution  of  the  United  States,  is  compatible 
with  its  provisions,  and  how  and  by  whom  the 
class  is  now  constituted.1  As  to  aliens  there 
can  be  no  doubt;  nor  can  it  be  doubted  whether 
the  people  intended  to  naturalize  them  all  in  a 
body,  by  classing  them  with  the  citizens,  and 

1  Since  the  adoption  of  the  13th  Amendment,  in  1865,  of  course  no 
such  question  can  arise. 


WE,   THE   PEOPLE.  61 

reckoning  them  in  the  enumeration  of  the  repre- 
sentative population,  because  they  have  made  an 
express  provision  for  doing  it  otherwise.  The 
fact  that  none  have  ever  been  excluded  from  the 
enumeration  by  law,  on  the  ground  of  slavery 
or  being  property,  proves  one  of  two  things,  — 
either  that  those  called  by  that  name  never  were 
rightfully  and  constitutionally  property  at  all, 
but  persons,  as  the  Constitution  calls  them;  or 
that,  by  being  counted  and  reckoned  according 
to  law  among  "  the  people  of  the  several  States," 
—  the  citizens,  —  they  are  absolved  from  their 
former  status,  and  made  persons,  equal  as  citizens 
with  the  others,  among  whom  they  are  classed 
and  counted  in  the  enumeration  of  "  the  people 
of  the  several  States." 

§  37.  Besides  aliens  and  slaves,  who  are  neces- 
sarily excluded  for  want  of  franchise  or  right, 
"Indians  not  taxed"  are  excluded  by  express 
provision ;  because,  belonging  to  their  own  native 
tribes,  governed  by  their  own  ancient  usages 
and  laws,  and  not  accepting  our  civilization  or 
allegiance  to  our  government,  though  within  its 
jurisdiction  and  in  some  respects  under  its  pro- 
tection, it  was  thought  right  that  they  should 
not  be  subjected  to  the  burdens  and  duties  of 
membership  of  the  nation,  nor,  of  course,  en- 
titled to  its  rights  and  privileges.  Being  native- 
born  inhabitants  of  the  land,  and  as  such  having 
the  .best  possible  franchise  therein,  they  must 
necessarily  have  been  included  in  any  proper 


62  WE,  THE  PEOPLE. 

description  of  the  people  or  citizens  of  the  coun- 
try, had  it  not  been  for  the  express  exclusion. 

§  38.  These  are  all  the  exclusions,  express  or 
implied.  Origin,  caste,  color,  descent,  or  any 
other  distinction  among  men,  has  no  effect  here. 
Descendants  of  Europeans  and  Africans  stand 
on  equal  ground;  and  those  of  Englishmen, 
Irishmen,  Frenchmen,  Dutchmen,  Ethiopians, 
and  Canadians,  are  all  dealt  with  alike.  If 
born  or  naturalized  here,  they  are  citizens; 
otherwise,  they  are  aliens.  The  mode  of  classi- 
fying and  counting  them,  under  different  names, 
and  some  as  units  and  others  as  fractions,  has 
no  more  effect  on  their  natural  rights,  or  on 
their  civil,  social,  or  political  status,  than  it  would 
to  classify  them  as  men,  women,  and  children; 
counting  the  first  as  units,  and  the  second  and 
third  two  or  three  for  one.  They  must  all  still 
be  citizens;  for  they  form  a  part  of  the  repre- 
sentative body  of  "the  people  of  the  several 
States."  The  "people  of  the  United  States," 
therefore,  are  everybody  belonging  to  the  coun- 
try, —  that  is,  having  a  franchise,  a  right,  as 
members  of  the  body  politic,  —  "  free  persons  " 
and  "  all  other  persons,"  Indians  only  being 
specially  excepted. 

Note  referred  to,  p.  51,  ante.— The  resolutions  of  the  town  of  Maiden, 
Mass.,  as  copied  in  2  Marshall's  "  Washington,"  408,  are  a  specimen  of 
the  action  of  the  people  on  this  subject.  After  saying  what  had  been 
their  feelings  regarding  their  connection  with  Great  Britain,  they  pro- 
ceed, "  But  our  sentiments  are  altered.  It  is  now  the  ardent  wish  of  our 
souls,  that  America  may  become  a  free  and  independent  state." 


CHAPTER    IV. 

THE  UNITED  STATES. 

§  39.  THE  next  words  in  the  enacting  clause 
of  the  Constitution  are  "the  United  States." 
They  are  used  twice  in  this  short  sentence,  with 
the  words  "  of  America  "  superadded  in  the  last 
instance.  They  are  the  corporate  name  of  the 
nation,  and  the  local  name  of  the  country.  As 
Great  Britain  forms  the  name  of  the  kingdom 
and  that  of  its  principal  island,  and  Russia  the 
name  of  the  empire  and  of  the  country  over 
which  it  extends;  so  the  United  States  is  the 
name  of  the  body  politic,  the  nation,  and  of 
the  country  it  occupies,  and  over  which  its  gov- 
ernment extends.  The  same  name  is  used  in 
the  Declaration  of  Independence,  as  it  is  in  this 
part  of  the  Constitution,  without  any  intimation 
how  or  of  what  it  is  composed,  or  that  it  includes 
a  series  of  subordinate  States  or  any  other  sub- 
divisions. The  assertion  is,  that  the  United 
States,  the  nation,  the  people  occupying  and 
controlling  this  land  wherein  we  dwell,  do,  in 
their  aggregate  and  corporate  character,  enact 

[63] 


64  THE  UNITED   STATES. 

• 

this  fundamental  law  for  the  government  of  the 
United  States;  the  nation,  the  country,  ourselves 
and  our  successors,  being  the  owners  and  occu- 
pants of  this  good  land. 

§  40.  The  emphatic  idea  is,  that  the  Constitu- 
tion was  made  for  the  nation,  the  whole  nation, 
including  all  its  parts;  and  not  for  the  parts, 
combining  them  into  a  whole,  —  for  the  people, 
collectively  and  individually,  in  all  their  capa- 
cities and  relations,  whether  personal,  political, 
social,  corporate,  or  otherwise.  It  is  the  Consti- 
tution for  the  whole;  the  fundamental  and  su- 
preme law  of  the  land.  Individuals,-  societies,  and 
corporations  —  commercial,  political,  and  local  — 
exist  under  it  as  they  existed  before  it;  but  they 
are  all  subject  to  it,  and  dependent  upon  it  for 
the  protection  of  their  natural  rights  and  the 
foundation  of  their  political  rights.  Though 
their  political  rights,  in  the  form  then  legally 
approved,  were,  like  their  natural  rights,  anterior 
to  the  Constitution,  yet,  when  that  was  adopted, 
it  became  paramount  to,  and  the  legal  measure 
of,  them  all;  and  the  local  Constitutions  and 
laws  were  to  be  construed  and  restricted  by  this 
supreme  law.  Any  thing  in  any  of  them  incon- 
sistent with  it  was  void.  The  present  State 
constitutions  were  all  made,  or  revised  and  re- 
enacted,  under  it,  and  designed,  or  should  have 
been,  to  conform  to  it;  but  at  any  rate  must  be 
judged  by  it,  and  cannot  counteract  it.  "  The 
idea  of  a  national  government  involves  in  it  not 


THE  UNITED  STATES.  65 

only  an  authority  over  individual  citizens,  but  an 
indefinite  supremacy  over  all  persons  and  things, 
so  far  as  they  are  objects  of  lawful  government." 
..."  In  some  instances  .  .  .  the  power  of  the 
new  government  will  act  on  the  States  in  their 
collective  characters."  Local  governments  are 
not  only  useful  and  most  valuable  as  schools  of 
republican  institutions  and  otherwise,  but  they 
are  absolutely  indispensable,  and  must  have  been 
instituted  by  the  government,  if  not  already 
provided.  The  national  government  could  not 
get  along  without  them.  Mr.  Madison  says,  "  If 
they  were  abolished,  the  general  government 
would  be  compelled,  by  the  principle  of  self- 
preservation,  to  re-instate  them  in  their  proper 
jurisdiction;  "  or,  he  should  have  added,  on  the 
same  principle  of  self-preservation,  provide  a 
substitute :  either  of  which  would  be  justified 
and  required  by  it.  All  controversies  respecting 
the  jurisdiction  of  such  subordinate  govern- 
ments must  be  ultimately  decided  by  a  "  tribunal 
...  to  be  established  under  the  general  govern- 
ment, .  .  .  according  to  the  rules  of  the  Con- 
stitution," and  acting  under  its  laws.1 

§  41.  It  would  have  been  impossible  for  any 
central  government  to  manage  all  the  minute 
interests  of  every  petty  locality  in  a  great  coun- 
try. As  such  governments  were  necessary  in 
some  form,  and  as  these  were  already  formed, 
what  could  be  more  natural  or  desirable  than 

1  Madison.  —  See  Federalist,  Nos.  14,  39,  and  40. 
5 


66  THE  UNITED  STATES. 

to  recognize  and  continue  and  guarantee  the 
perpetual  republican  character  of  those  organ- 
izations? Such  constitutional  recognition  and 
consequent  perpetuation  of  the  existing  divisions 
may  have  been  hazardous,  and  liable  to  much 
doubt  on  the  score  of  expediency;  and  accord- 
ingly we  find  that  some  of  the  most  sagacious 
men  in  the  convention  were  very  desirous  and 
sought  diligently  to  avoid  it :  and  our  recent  his- 
tory has  abundantly  confirmed  the  sound  wisdom 
and  foresight  which  occasioned  their  fears  and 
anxieties  on  the  subject.  It  is  still  the  most  vul- 
nerable part  of  our  system;  but  its  apprehended 
evils  can  best  be  guarded  against  by  a  liberal 
use  of  the  actual  powers  and  jurisdiction  of  the 
general  government,  attended,  as  it  necessarily 
would  be,  by  a  corresponding  diminution  of 
the  power  and  patronage,  the  expense  and  influ- 
ence, of  the  subordinate  local  administrations. 
The  Constitution  gives  them  no  power,  and 
reserves  none  to  them,  and  leaves  nothing  for 
their  own  people  to  give  them,  but  such  as  the 
nation,  "  the  people  of  the  United  States,"  have 
not  delegated  to  their  own  government.  The 
Constitution  subjects  the  States  politically  (as 
bodies  politic),  and  their  officers  officially  (in 
their  official  capacity),  as  well  as  individuals 
personally,  to  divers  important  duties,  which,  of 
course,  they  are  respectively  authorized  to  per- 
form; and  the  performance  must  be  enforced, 
peaceably  or  forcibly,  like  all  other  lawful  duties, 


THE  UNITED   STATES.  67 

by  the  power  which  the  nation  has  made  respon- 
sible for  the  execution  of  all  the  laws. 

§  4-2.  In  a  few  instances  it  authorizes  State 
action,  with  the  consent,  or  subject  to  the  ulti- 
mate control,  of  Congress ;  but  of  an  independent 
right  to  govern  in  the  last  resort,  which  is 
supreme  power,  either  local  or  general,  the  Con- 
stitution confers  or  recognizes  none,  in  the  State 
governments  or  anywhere  else,  except  in  the 
people  and  in  the  Constitution  and  laws  of 
the  United  States,  which  are  the  only  supreme 
law  of  the  land.  It  really  reserves  nothing  to 
them  expressly  of  the  power  they  before  pos- 
sessed, but  the  right  to  appoint  the  officers  of 
the  militia,  and  to  train  them  according  to  the 
discipline  adopted  by  Congress.  No  other 
power  of  final  local  administration  was  either 
given  or  continued,  by  express  provision,  to  the 
States.  The  question  in  regard  to  State  rights, 
which  always  mean  State  independence  and 
State  sovereignty,  is  between  subordinate  and 
co-ordinate  governments,  —  whether  the  States, 
being  within  and  parts  of  the  United  States, 
hold  their  separate  political  existence  and  powers 
by  virtue  of  the  Constitution  and  in  subordina- 
tion to  its  provisions,  and  of  course  bound  to 
conform  to  it  and  sustain  it;  or  whether  they 
hold  by  sovereign  right,  above  or  co-ordinate 
with  and  independent  of  the  Constitution,  and 
of  course  authorized  to  act  against  it.  In 
strictness,  nothing  is  "reserved,"  or  could  be 


68  THE  UNITED   STATES. 

"reserved"  to  the  State  governments  that  is 
entirely  given  away,  "  delegated,"  to  the  general 
government.  This  strictness  would  place  a  load 
upon  the  general  government  that  they  could 
not  carry;  and,  of  course,  the  construction  has 
been  to  "  leave  "  (  "  leave  "  is  the  word  studiously 
used  by  the  fathers  of  our  government)  the 
States  to  exercise  such  powers  as  are  not  pro- 
hibited to  them,  and  which  the  general  govern- 
ment, though  authorized,  decline  or  omit,  for  the 
time  being,  to  exercise.  It  is  on  this  principle 
that  the  States  have  been  allowed,  "  left,"  to  do 
many  things  that  the  general  government  might 
and  perhaps  should  have  done,  and  from  which, 
if  they  had  legislated,  being  the  supreme  power, 
the  States  would  have  been  excluded.  Where 
the  United  States  have  the  right  to  legislate, 
they  have  also  the  right  to  exclude  all  interfering 
legislation. 

§  43.  The  powers  not  delegated  to  the  general 
government,  nor  prohibited  to  the  States,  are 
reserved  to  the  States  or  to  the  people.  In 
the  10th  Amendment,  the  words  "States"  and 
"United  States  "  mean  their  governments  respec- 
tively, as  then  organized :  the  people  are  the 
active  governing  power,  the  nation.  What  they 
then  had,  the  State  governments  could  continue 
to  hold,  under  this  reservation,  as  long  as  they 
retained  their  identity.  But  other  States,  or 
other  governments  in  those  States,  could  claim 
nothing  under  this  clause.  When  the  govern- 


THE  UNITED   STATES.  69 

ments  to  whom  this  reservation  was  made  were 
dissolved,  and  new  ones  had  to  be  formed,  the 
people  who  formed  them  could  grant  them 
nothing  but  what  they  then  possessed,  which 
certainly  did  not  include  any  thing  they  had  pre- 
viously delegated  to  the  general  government. 
The  people  who  had  made  the  original  State 
Constitutions  could  alter  or  supersede  them,  in 
whole  or  in  part,  as  they  pleased.  By  making 
the  Constitution  of  the  United  States,  which  was 
done  not  only  by  the  whole  people  of  the  United 
States,  but  by  the  majority  of  the  people  of  each 
State  also,  they  altered  every  State  Constitution 
so  far  as  to  make  it  conform  to  the  United-States 
Constitution,  which  they  ordained  to  be  the 
supreme  or  paramount  law.  What  the  whole 
nation  had  thus  delegated  to  the  general  gov- 
ernment, no  particular  State  could  re-grant  to 
anybody,  because  it  was  no  longer  theirs  to 
give.  What  was  not  granted  to  the  general 
government  remained  with  the  grantees,  the 
whole  people  of  the  nation,  on  general  princi- 
ples, as  well  as  by  the  10th  Amendment;  and 
this  applied  to  what  had  been  reserved  to  the 
original  State  governments  as  then  organized, 
as  soon  as  those  governments  were  dissolved, 
whether  new  ones  were  organized  in  their  place 
or  not. 

§  44.  But  there  is  another  principle  available 
to  any  individual,  or  to  any  legally  authorized 
association  of  individuals.  Whatever  violates 


70  THE  UNITED   STATES. 

no  law  may  be  done  according  to  law.  Though 
the  government  may  have  ample  power  to  regu- 
late a  subject  in  every  minute  particular,  yet,  if 
it  makes  no  rule,  every  man  is  left  to  make  one 
for  himself,  or  to  agree  upon  one  with  his  neigh- 
bors, either  in  the  form  of  State  laws  or  other- 
wise. So  it  has  been  decided  by  the  Supreme 
Court,  that,  although  Congress  has  the  entire 
power  over  "the  subject  of  bankruptcies,"  yet, 
as  long  as  they  neglect  to  make  any  law  on  the 
subject,  State  laws  in  regard  to  it  may  be  con- 
stitutionally executed,  notwithstanding  it  is  not 
a  reserved  power,  but  a  positively  delegated 
power,  which,  in  its  nature,  must  be  exclusive; 
for  a  power  cannot  both  be  given  away  and 
retained  at  the  same  time.  A  special  power 
may  be  reserved  out  of  a  general  grant  that 
would  otherwise  include  it;  but,  in  that  case, 
the  special  power  is  excepted  from  the  general 
grant,  and  never  was  granted. 

§  45.  The  effect  of  this  principle  is  to  allow 
the  State  governments  to  make  what  regulations 
they  please,  authorized  by  their  own  Constitu- 
tions,—  provided  they  are  compatible,  and  not 
inconsistent,  with  the  Constitution  and  laws  of 
the  United  States.  The  same  is  true  whatever 
may  be  the  extent  of  the  powers  of  the  govern- 
ment. If  they  may  "  promote  the  general  wel- 
fare," and  have  plenary  power  and  universal 
jurisdiction  to  regulate  and  command  any  thing 
and  every  thing  that  any  legitimate  government 


THE  UNITED   STATES.  71 

could  rightfully  do;  still,  if  they  neglect  any 
subject  of  which  the  State  governments  are  not 
expressly  or  impliedly  denied  the  cognizance, 
what  but  their  own  Constitutions  can  interfere 
with  'their  action?  The  States,  as  well  as  indi- 
viduals, have  a  constitutional  existence,  and  a 
right  to  make  laws  as  a  government;  and,  of 
course,  may  make  any  laws  that  their  own 
people,  by  their  Constitution,  authorize,  —  pro- 
vided they  do  not  contravene  the  Constitution 
of  the  United  States,  or  any  law  made  in  virtue 
of  it.  This  is  the  precise  relation  in  which 
the  States  stand  to  the  nation,  the  subordinate 
divisions  to  the  whole.  Whatever  the  Constitu- 
tion and  government  of  the  United  States  law- 
fully enjoin  is  supreme  law.  Whatever  the  State 
governments  do  in  contravention  of  it,  or  incom- 
patible with  it,  is  void ;  and  what  they  do  in 
accordance  with  it,  if  authorized  by  their  own 
people,  is  constitutional  and  valid. 

§  46.  But  the  idea  that  the  Constitution  or 
the  people  of  the  United  States  have  appropri- 
ated any  particular  department  of  government, 
or  any  particular  class  of  subjects,  to  the  exclu- 
sive action  and  sole  management  of  the  local 
authorities,  is  entirely  groundless.  It  organizes 
a  government  for  the  United  States,  the  whole 
nation,  and  all  its  interests  and  people,  individ- 
iial  and  corporate,  and  makes  it  supreme  over 
the  .whole  land.  Whatever  this  government 
cannot  do  or  will  not  do,  others  may  do  if 


72  THE  UNITED   STATES. 

unrestrained  by  national  or  State  constitutions, 
or  it  may  remain  undone;  but  neither  the  local 
governments  nor  individuals  can  do  any  thing 
to  obstruct,  retard,  or  in  any  way  counteract, 
the  proceedings  of  the  general  government. 

§  47.  A  Constitution  for  the  United  States  is 
a  fundamental  law  for  the  whole  country;  and, 
if  it  is  adequate  to  the  exigencies  of  govern- 
ment, it  is  competent  to  all  the  purposes  for 
which  a  good  government  is  ever  wanted.  The 
efficiency  of  the  government  is  all  derived  from 
the  Constitution,  and  is  equal  in  all  places 
within  the  limits  of  the  United  States.1  All  its 
power  is  derived  from  the  Constitution,  and 
must  be  exercised  in  conformity  to  its  grants 
and  within  its  restrictions.  It  is  not  different 
in  kind,  or  greater  or  less  in  degree,  in  one 
place  than  it  is  in  another.  It  is  supreme  every- 
where. It  is  exclusive  where  there  is  no  subor- 
dinate government,  and  it  is  inclusive  where 
there  is  one.  It  is  temporarily  exclusive  where 
there  may  be  another,  till  such  a  one  is  rightfully 
instituted;  and  it  is  permanently  exclusive  where 

1  "  Does  this  term  [the  United  States]  designate  the  whole,  or  any 
particular  portion,  of  the  American  empire  ?  Certainly  this  question  can 
admit  of  but  one  answer.  It  is  the  name  given  to  our  great  republic, 
which  is  composed  of  States  and  Territories.  The  District  of  Columbia, 
or  the  territory  west  of  the  Missouri,  is  not  less  within  the  United  States 
than  Maryland  or  Pennsylvania."  —  By  the  Court,  Marshall,  C.J.,  in 
Loughborough  v.  Blake,  5  Wheat.  R.  319. 

"  The  exigencies  of  government "  are  all  the  exigencies  of  any  gov- 
ernment, —  all  the  purposes  for  which  government  is  instituted.  A 
government  adequate  to  these  is  a  full  and  perfect  government,  whether 
with  or  without  subordinates. 


THE  UNITED   STATES.  73 

there  can  be  no  other.  If  a  rightful  subordinate 
becomes  extinct,  whether  by  right  or  by  wrong, 
the  general  government  again  becomes  exclusive 
till  a  new  subordinate  may  rightfully  resume  the 
place. 


CHAPTER   Y. 

THE  ENACTMENT. 

§  48.  THE  Constitution  having  thus  described 
the  agent,  the  people,  the  power  that  acts  in  this 
matter;  and  the  nation,  the  United  States,  the 
people  themselves  in  fact,  on  whose  account,  and 
for  whose  benefit  they  act, — it  is  proper  that  we 
next  consider  the  authoritative  action  itself,  which 
is  there  expressed  by  the  words  "  ordain  and  es- 
tablish." These  words  are  of  commanding  or 
law-giving  force,  —  mandatory  in  their  nature. 
Under  the  Confederation,  the  Acts  of  Congress 
were  styled  w  ordinances."  The  words  are  used  in 
the  Constitution,  in  other  instances,  in  the  same 
sense.  They  mean  to  legislate,  enact,  or  decree. 
Congress,  the  legislative  or  law-making  power 
under  the  Constitution,  may  "establish"  rules 
and  laws,  post-offices  and  post-roads,  by  making 
or  enacting  laws,  not  otherwise.  Offices  are  to 
be  "  established  "  by  law.  They  may  "  constitute 
tribunals"  in  the  same  way;  which  is  the  same 
power  given  in  another  place,  to  "  ordain  and  es- 
tablish" courts.  All  these  are  done  by  enacting 

[74] 


THE  ENACTMENT.  75 

laws.  So  the  people,  having  the  sole  and  abso- 
lute right  and  power  to  prescribe  the  rule  and 
govern  the  land,  "  ordain  and  establish,"  enact 
and  decree,  and  give  authority  and  perpetuity  to 
this  fundamental  and  supreme-  law.  When  it  is 
thus  "  ordained,"  it  has  all  the  force  and  efficacy 
which  such  ultimate  right  and  power  can  confer, 
without  appeal  or  other  resort.  When  it  is 
"established"  in  the  same  manner,  it  is  as  per- 
manently fixed  and  settled  as  human  power  can 
make  it.  So  the  "  Constitution  of  the  United 
States,"  with  its  avowed  purposes  and  objects, 
is  the  "  supreme  law "  of  the  nation,  adequate- 
ly enjoined  and  "  ordained,"  and  permanently 
"  established  "  by  the  "  people  "  thereof.  Esto 
perpetua. 

THIS   CONSTITUTION. 

§  49.  After  the  action  comes  the  subject-mat- 
ter, the  thing  done, — "this  Constitution,"  with 
its  character  and  purposes.  The  word  "this" 
makes  it  perfectly  definite  and  inclusive.  We 
have  already  noticed,  that  it  is  not,  as  in  the 
original  draft,  "the  following  Constitution,"  or 
"  a  Constitution  in  manner  and  form  following," 
thus  excluding  this  enacting  clause.  But  it  is 
"  this,"  —  ipsissimus,  —  this  whole  instrument 
definitely,  including  this  governing  clause  and  all 
the  rest.  The  entire  instrument  and  all  its  parts 
is  "  this  Constitution."  A  Constitution  is  a  fun- 
damental law,  constituting,  or  instituting  and 


76  THIS   CONSTITUTION. 

establishing,  an  authority  or  agency  for  the  ac- 
complishment of  certain  specified  purposes.  What 
does  "this  Constitution  for  the  United  States" 
do?  ^Certainly  it  constitutes,  or  it  institutes  and 
establishes,  an  authority  or  agency  for  the  ex- 
press purpose,  or  "  in  order  to"  accomplish  certain 
specified  things.  These  things  are  the  regular 
business,  the  appropriate  duties,  of  a  government, 
—  w  a  firm  national  government,  .  .  .  adequate  to 
the  exigencies  of  government  and  the  preserva- 
tion of  the  Union."  They  are  what  nothing  but 
a  government  can  do.  "  They  comprise,"  said 
Chief  Justice  Jay,  "  every  thing  requisite,  with 
the  blessing  of  divine  providence,'  to  render  a 
people  prosperous  and  happy;"  and  include  all 
that  any  legitimate  government  can  be  required, 
or  ought  to  be  expected,  to  do.  The  authority 
and  agency  so  established  is  therefore  proved  to 
be  a  government,  by  the  subjects  and  duties  as- 
signed to  it.  They  are  all  in  the  line  of  the 
duties  of  a  government  exclusively,  require  the 
supreme  power  and  authority  of  a  government, 
and  involve  the  necessity  of  a  perfect  and  entire 
government,  co-extensive  with  the  expressed 
purposes  and  designs. 

§  50.  When  the  American  people  expressly 
avow  such  designs,  as  their  true  intention  in  the 
establishment  of  their  government,  and  authori- 
tatively ordain  and  establish  it  on  that  account 
and  for  that  purpose,  they  most  imperatively 
prescribe  the  duty  of  that  government  to  pur- 


THIS  CONSTITUTION.  77 

sue  and  promote  them.  The  prescribed  duty  of 
the  government  is  the  measure  and  end  of  their 
power.  These  objects  and  purposes,  as  here 
specified,  are  a  mere  paraphrase  or  substitute  for 
the  words  used  by  Congress  in  calling  the  con- 
vention to  form  a  "  firm  national  government,  .  .  . 
adequate  to  the  exigencies  of  government  and 
the  preservation  of  the  Union."  Again,  that  the 
"Constitution"  was  designed  to  be  a  constitu- 
tion of  government  for  the  United  States,  is 
manifest  from  the  fact,  that  in  the  sequel  they 
proceed  to  organize  such  a  government,  in 
detail,  dividing  it  into  appropriate  departments, 
and  assigning  to  each  such  portion  of  the  duties 
of  such  a  government  as  properly  come  within 
its  sphere.  Besides,  the  agency  thus  "  ordained 
and  established  "  by  the  w  people  of  the  United 
States  "  is  repeatedly  called,  in  divers  places  on 
the  face  of  the  instrument,  "  the  government  of 
the  United  States,"  in  express  terms.1 

1  Chief  Justice  Ellsworth  said,  in  the  Connecticut  convention  (2  El- 
liot, 190) :  "  The  Constitution  is  a  complete  system  of  legislative,  judicial, 
and  executive  power ;  .  .  .  and  it  will  be  found  calculated  to  answer  the 
purposes  for  which  it  was  designed." 

Washington  wrote,  Feb.  7,  1788 :  "  With  regard  to  the  two  great 
points,  the  pivots  on  which  the  whole  machine  must  move,  my  creed  is 
simply,  —  First,  that  the  general  government  is  not  invested  with  more 
powers  than  are  indispensably  necessary  to  perform  the  functions  of 
good  government ;  and,  consequently,  that  no  objection  ought  to  be  made 
against  the  quantity  of  power  delegated  to  it.  Secondly,  that  these 
powers,  as  the  appointment  of  all  'rulers  will  for  ever  arise  from,  and  at 
short,  stated  intervals  recur  to,  the  free  suffrages  of  the  people,  are  so  dis- 
tributed among  the  legislative,  executive,  and  judicial  branches  into  which 
the  general  government  is  arranged,  that  it  can  never  be  in  danger  of 
degenerating  into  a  monarchy  or  oligarchy,  or  any  other  despotic  or 
oppressive  form,  so  long  as  there  shall  remain  any  virtue  in  the  body 


78  THIS   CONSTITUTION. 

§  51.  A  Constitution  made,  ordained,  and  es- 
tablished for  such  purposes,  and  expressly  "  in 
order  to  "  accomplish  them,  must  therefore  be  a 
constitution  of  government  "  for  the  United 
States  of  America,"  with  the  duty,  and  of 
course  the  necessary  right  and  power,  "  to  form 
a  more  perfect  Union,  establish  justice,  insure 
domestic  tranquillity,  provide  for  the  common 
defence,  promote  the  general  welfare,  and  secure 
the  blessings  of  liberty."  These  are  the  express 
purposes,  and  the  only  purposes,  for  which  it 
was  made.1  The  ordinance  of  the  American 
people  is  the  law,  the  paramount  law.  The  law 
imposes  the  duty,  and  the  duty  carries  with  it 
the  power.  Here,  in  this  enacting  clause,  is  the 
epitome  and  essence  of  the  whole  Constitution. 
Had  it  ended  here,  nothing  would  have  been 
wanting  but  the  details,  specifications,  limitations, 
and  qualifications  which  the  government  itself 
could  have  supplied,  if  the  people  had  seen  fit  to 
omit  doing  it  for  them.  "  There  can  be  no 
doubt,"  says  Mr.  Madison,  "  that  all  the  particu- 
lar powers,  requisite  as  means  of  executing  the 

of  the  people.  ...  I  will  only  say,  as  a  further  opinion  founded  on  the 
maturest  deliberation,  that  there  is  no  alternative,  no  hope  of  alteration, 
no  intermediate  resting-place,  between  the  adoption  of  this,  and  a  recur- 
rence to  an  unqualified  state  of  anarchy,  with  all  its  deplorable  conse- 
quences." — Writings,  ix.  318. 

Chief  Justice  Jay,  in  his  address  to  the  people  of  New  York,  in  1788, 
said  :  "  A  national  government,  competent  to  every  national  object,  waa 
indispensably  necessary."  —  1  Elliot's  Debates,  496. 

1  In  Cohens  v.  Virginia,  6  Wheat.  E.  264,  the  Supreme  Court,  by 
Marshall,  C.  J.,  call  "the  powers  confided  to  the  Supreme  Government, 
for  these  interesting  purposes,  ample ; "  that  is,  sufficient  for  them  all. 


THIS  CONSTITUTION.  79 

general  powers,  would  have  resulted  to  the 
government,  by  unavoidable  implication.  No 
axiom  is  more  clearly  established  in  law  or  in 
reason,  than  that,  whenever  the  end  is  required, 
the  means  are  authorized;  wherever  a  general 
power  to  do  a  thing  is  given,  every  particular 
power  necessary  for  doing  it  is  included." l 

§  52.  By  authoritatively  prescribing  the  pur- 
poses and  objects  to  be  accomplished,  it  regulates 
the  magnitude  and  extent  of  the  powers  to  be 
applied  to  them.  The  end  and  the  means  must 
be  commensurate.  If  the  government  was 
actually  formed  for  certain  specified  purposes, 
then  the  people,  who  formed  it,  required  those 
purposes  to  be  accomplished  by  it.  They  have 
appointed  no  other  agent.  If  the  government 
have  no  right  to  accomplish  them,  it  is  because 
the  people  had  no  intention  that  they  should  be 
accomplished.  The  assertion  to  the  contrary  is 
only  a  false  pretence.  To  say  that  it  was  the 
express  purpose  of  the  people  that  a  thing 
should  be  done,  and  yet  that  the  government 
have  no  power  to  do  it,  is  therefore  a  contradic- 
tion in  terms.  :?  The  means,"  says  Alexander 
Hamilton,  "  ought  to  be  proportioned  to  the  end ; 
the  persons  from  whose  agency  the  attainment 
of  any  end  is  expected  ought  to  possess  the 
means  by  which  it  is  to  be  attained." 2  It  will 
not  answer  to  represent  the  American  people 
as  guilty  of  the  gross  absurdity  of  saying,  "  We 

1  Federalist,  No.  44.  2  Federalist,  No.  23. 


80  THIS  CONSTITUTION. 

ordain  and  establish  this  Constitution,  in  order 
to  form  a  more  perfect  Union,  establish  justice, 
insure  domestic  tranquillity,  provide  for  the  com- 
mon defence,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  ourselves  and 
our  posterity,  —  meaning  and  intending  thereby, 
that  the  government  hereby  created  shall  have 
no  right  to  do  any  one  of  these  things,  unless 
a  special  power  is  hereinafter  specifically  dele- 
gated to  some  particular  department,  for  each 
particular  purpose."  Yet  this  is  substantially 
what  has  been  often  contended  for. 

§  53.  The  expression  of  a  particular  purpose 
or  object,  in  an  act  done  or  to  be  done,  is  not  an 
unusual  form,  in  our  Constitution,  of  conferring 
a  right  or  imposing  a  duty  to  accomplish  that 
purpose.  In  the  8th  section  of  Article  I.,  the 
militia  may  be  called  forth,  for  the  purpose,  in 
order  "  to  execute  the  laws  of  the  Union,  sup- 
press insurrections,  and  repel  invasions."  Here 
is  not  only  the  power  and  duty  to  do  these 
things,  but  the  means  by  which  they  may  be 
done.  That  the  government  is  bound  w  to  exe- 
cute the  laws,  suppress  insurrections,  and  repel 
invasions,"  and  that,  in  the  discretion  of  Con- 
gress, the  militia  may  be  used  for  the  purpose, 
is  here  distinctly  asserted.  But,  as  the  militia  is 
the  only  means  suggested  and  expressly  placed 
at  the  disposal  of  the  government  for  effecting 
these  important  objects,  the  doubt  would  seem 
to  be,  whether  the  government  would  have  a 


THIS  CONSTITUTION.  81 

right  to  accomplish  either  of  them  in  any  other 
way,  or  to  make  use  of  any  other  means  for  the 
purpose.  This  doubt,  I  believe,  never  was  ex- 
pressed, and  it  is  not  likely  that  it  ever  will  be. 

§  54.  Mr.  Jefferson  construes  the  second  line 
in  the  same  section  in  the  same  manner,  as  a 
mere  qualification  of  the  power  of  taxation;  in 
which  he  is  undoubtedly  right,  unless  "  to  pay 
the  debts,  and  provide  for  the  common  defence 
and  general  welfare,"  are  distinct  substantive 
powers,  which  will  be  considered  in  another 
place.  He  says : 1  "  To  lay  taxes  to  provide  for 
the  general  welfare  of  the  United  States,  is  to 
lay  taxes  for  the  purpose  of  providing  for  the 
general  welfare.  Congress  are  not  to  lay  taxes 
ad  libitum,  for  any  purpose  they  please,  but  only 
to  pay  the  debts  or  provide  for  the  welfare  of 
the  United  States."  But  they  may  lay  them  for 
these  purposes,  or  either  of  them,  and  apply 
them  to  the  purpose.  They  cannot  lay  them  for 
any  other  purposes,  because  there  are  none. 
These,  and  indeed  "the  common  defence  and 
general  welfare,"  alone  include  every  purpose 
for  which  the  government,  or  any  government, 
ever  was  instituted.  The  only  doubt  would  seem 
to  be,  as  in  the  other  case,  whether  they  are  at 
liberty  to  accomplish  the  purposes  by  any  other 
means  than  .taxation.  This  doubt  has  been 
practically  solved  by  the  whole  history  of  the 
government.  Debts  have  been  paid,  and  are 

1  Opinion  on  the  Bank  of  the  United  States,  Feb.  15,  1794. 
6 


82  THIS   CONSTITUTION. 

still,  by  all  the  means  by  which  the  treasury  is 
from  time  to  time  replenished,  including  bor- 
rowed money,  and  fines  and  forfeitures  of  crimi- 
nals, much  more  than  revenue  from  taxation.  If 
other  means  than  taxation  had  not  been  used 
for  the  "  common  defence  and  general  welfare  " 
during  the  late  rebellion,  the  country  would  have 
found  itself  in  a  very  different  predicament  from 
what  it  is  to-day. 

§  55.  Mr.  Hamilton,  in  his  Report  on  Manu- 
factures, in  1791,  said  that  the  power  to  effect 
these  objects  by  taxation,  which  was  "  granted 
in  express  terms,"  would  not  carry  with  it  a 
power  to  do  the  same  by  any  other  means  "not 
authorized  in  the  Constitution."  This  implies 
that  they  might  do  it  by  any  means  which  the 
Constitution  places  at  their  disposal ;  and,  as  this 
includes  all  the  means  "  necessary  and  proper " 
for  the  purpose,  it  would  be  sufficiently  exten- 
sive; and  the  practice  of  the  government  has 
been  in  conformity  to  it. 

§  56.  By  another  clause  in  the  same  section, 
Congress  is  authorized  "  to  promote  the  progress 
of  science,"  &c.,  by  granting  patent  rights.  In 
other  words,  they  may  secure  "  to  authors  and 
inventors  the  exclusive  right  to  their  respective 
writings  and  discoveries,"  for  the  purpose,  or  in 
order,  "to  promote  the  progress  of  science  and 
the  useful  arts."  Quaere,  may  they  not  promote 
the  progress  of  science  by  other  means  than 
patent-rights?  and  may  they  not  grant  patent- 


THIS   CONSTITUTION.  83 

rights  for  other  purposes  than  the  promotion  of 
science?  It  is  believed  that  the  government 
patronizes  and  promotes  the  progress  of  science 
and  the  useful  arts  much  more  efficiently  and 
effectually,  every  day,  by  other  means  and  mea- 
sures under  its  control,  than  by  their  patent  laws ; 
and  that  their  patent  laws  are  made  quite  as 
efficient  and  effectual  to  replenish  their  library 
with  books,  their  patent-office  with  curiosities, 
and  their  treasury  with  funds,  as  they  are  to  pro- 
mote the  progress  of  science  and  the  useful  arts. 
At  least,  there  is  nothing  in  the  Constitution  to 
prevent  their  doing  so  if  they  please.  Other 
clauses,  of  an  analogous  nature  and  in  similar 
form,  are  contained  in  the  Constitution;  either 
ordaining  means  adapted  to  a  particular  object, 
or  prescribing  an  object  to  be  obtained  by  parti- 
ticular  means.  In  which  cases  the  end  as  well 
as  the  means,  and  the  means  as  well  as  the  end, 
are  among  "  the  powers  vested  by  this  Consti- 
tution in  the  government,"  and  of  course  to  be 
executed  by  any  "  laws  necessary  and  proper " 
for  the  purpose. 

§  57.  The  Constitution  is  of  the  same  charac- 
ter. This  fundamental  law  was  "  ordained  and 
established"  for  certain  specified  purposes,  ex- 
pressed on  its  face.  The  law  and  the  purposes 
are  parts  of  the  same  instrument,  and  together 
constitute  the  instrument.  The  government  is 
the  sole  agent  of  the  people  for  executing  it;  and 
is  bound  to  execute  it,  and  all  and  every  part  of  it, 


84  THIS   CONSTITUTION. 

by  the  use  of  all  the  power  placed  at  its  disposal. 
The  thing  done,  or  to  be  done,  and  the  end  or 
purpose  for  which  it  is  done,  the  means  and  the 
end,  are  both  law,  and  must  be  executed  as  such. 
Any  other  construction  would  emasculate  the 
Constitution,  and  cripple  the  government.  It 
would  deprive  it  of  its  adequacy  to  the  exigen- 
cies thereof,  and  of  its  competence  to  execute 
and  administer  the  supreme  law  or  govern  the 
country.  If  the  people  intended,  as  they  say, 
that  the  "  blessings  of  liberty  "  should  be  secured 
by  the  Constitution,  they  intended  that  the  gov- 
ernment they  created  w  in  order  "  to  do  it,  should 
do  it.  If  they  did  not  intend  the  government 
should  do  it,  they  did  not  intend  it  should  be 
done  by  the  Constitution. 

§  58.  The  attempt  to  reduce  the  Constitution 
to  such  a  condition  of  imbecility,  and  to  induce 
a  belief  that  such  was  its  true  character,  has 
rested,  in  great  measure,  on  the  success  of  an 
effort  to  place  this  introductory  or  enacting 
clause  entirely  outside  of  the  instrument.  This 
effort  has  been  made  principally,  and  it  may  be 
said  exclusively,  by  giving  it  a  bad  name.  Un- 
fortunately, the  Constitution  itself  gives  it  no 
name.  This  circumstance  has  afforded  great 
facility  to  those  interested,  to  affix  a  euphonious 
name  well  calculated  to  answer  their  purpose. 
They  have  studiously  called  it  a  Preamble,  and 
under  that  misnomer  it  has  been  generally  cited. 
But  the  Constitution  does  not  call  it  so,  nor  is  it 


THIS   CONSTITUTION.  85 

so  in  fact.  It  has  none  of  the  characteristics, 
and  answers  none  of  the  purposes,  of  a  pream- 
ble ;  nor  has  it  any  resemblance  to  one,  either  in 
form  or  substance. 

§  59.  The  preamble  to  a  statute,  in  the  order 
of  its  arrangement,  comes  before  the  statute, — 
that  is,  before  the  mandatory  part,  or  actual 
enactment,  of  which  it  constitutes  no  portion. 
A  pre-amble,  walk-before  the  law,  is  not  in  the 
law;  forms  no  part  of  its  mandate,  or  authorita- 
tive requirement.  Its  substance  consists  of  a 
rehearsal  of  facts  or  reasonings,  by  way  of  in- 
ducement, supposed  to  show  the  fitness  or  pro- 
priety of  the  subsequent  enactment.  In  form,  it 
begins  with  a  "  whereas,"  and,  after  stating  the 
matter  of  inducement,  ends  with  "  therefore,"  fol- 
lowed by  the  mandate,  the  law,  "  Be  it  enacted," 
&c. ;  as,  w  Whereas  A,  B,  and  C  have  humbly 
petitioned  us  to  grant  them  leave,  at  their  own 
proper  cost  and  charges,  to  construct  certain 
highly  necessary  and  important  public  works,  as 
hereinafter  mentioned,  entirely  for  the  use  and 
benefit  of  the  public,  and  without  any  prospect, 
expectation,  or  even  hope,  of  realizing  the  least 
benefit  or  advantage  therefrom  themselves; 
which  humble  request  appearing  to  be  just  and 
reasonable ;  Therefore,"  be  it,  &c.  This  is  just 
what  the  introductory  clause  of  the  Constitution 
is  not.  Here  is  no  rehearsal  by  way  of  induce- 
ment, no  manuduction,  no  "  whereas,"  and  no 
corollary  requiring  a  subsequent  command, 


86  THIS  CONSTITUTION. 

nothing  preceding  the  supreme  authority  and  the 
mandatory  words :  simply  a  naked  ordinance, 
absolute  and  peremptory,  ((:  We,  the  people, 
ordain  and  establish." 

§  60.  The  real  force  and  effect  of  a  preamble 
is  well  stated  in  the  following  authorities.  My 
Lord  Coke  says,  "  The  rehearsal  or  preamble  is 
a  good  mean  to  find  out  the  meaning  of  a  stat- 
ute, and  a  key  to  the  understanding  thereof." 
Mr.  Justice  Buller  says,  w  The  preamble  cannot 
control  the  enacting  part  of  a  statute  which  is 
expressed  in  clear  and  unambiguous  terms;  but, 
if  any  doubt  arises  on  the  words  of  the  enacting 
part  of  a  statute,  the  preamble  may  be  resorted 
to  to  explain  it."1  Mr.  Justice  Story,  in  his 
"  Commentaries," 2  says,  on  this  very  passage,  as- 
suming it,  without  discussion,  to  be,  as  commonly 
called,  a  preamble :  "  It  cannot  confer  any  power 
per  se;  it  can  never  amount  by  implication  to  an 
enlargement  of  any  power  expressly  given." 

§  61.  The  enacting  clause,  as  well  as  every 
thing  following  it,  in  a  statute,  is  made  law  by 
force  of  the  enactment.  It  is  mandatory  in  its 
character,  and  in  its  form.  It  usually  includes 
the  substance,  the  essence,  the  epitome,  of  the 
whole  statute ;  as,  "Be  it  enacted  by  the  Senate 
and  House  of  Representatives,  that  there  be,  and 
hereby  is,  constituted  and  established  a  corpora- 
tion, or  body  politic,  consisting  of  the  said  A,  B, 
C,  their  associates  and  successors,  in  order  to  lay 

1  4  D.  &  E.  790 ;  Willes,  395.  2  Vol.  i.  445. 


THIS  CONSTITUTION.  87 

out  and  construct  a  railroad,  for  the  transpor- 
tation of  passengers  and  merchandise  through 
the  populous  and  important  agricultural  and 
manufacturing  region  from  Scamjessamin  to  Bal- 
leyhack."  Here  is  the  substance  of  the  whole 
law,  —  the  lawgiving  authority,  the  commanding 
act,  the  subject-matter,  and  the  purpose  or  object 
to  be  accomplished.  The  subsequent  sections 
are  mere  detail,  supplying  the  particulars  of  the 
manner  of  organizing  the  Company,  its  mode  of 
action,  &c.,  together  with  specifications,  qualifi- 
cations, limitations,  &c..,  none  of  which  may  be 
essential  to  the  existence  of  the  corporation,  or 
its  power  to  effect  the  purposes  of  the  law. 

§  62.  To  this  the  first  sentence  of  our  Con- 
stitution is  the  exact  counterpart :  ?  We,  the 
people  of  the  United  States,"  is  the  lawgiving 
authority;  "  ordain  and  establish"  is  the  manda- 
tory action;  ??  this  Constitution  for  the  United 
States"  is  the  subject-matter;  and  "in  order  to 
form  a  more  perfect  Union,"  "  secure  the  bless- 
ings of  liberty,"  &c.,  are  the  purposes  and  ends 
to  be  accomplished  thereby.  To  put  all  this  out 
of  the  Constitution,  by  construction,  is  to  de- 
capitate it  entirely.  It  would  leave  it  only  the 
fragment  of  a  law;  without  a  lawgiver,  without 
an  enactment,  without  a  subject,  and  without  an 
object.  On  the  contrary,  this  first  sentence  is 
the  principle  and  governing  clause  of  the  whole 
instrument.  By  giving  it  a  bad  name,  it  is 
attempted  to  thrust  it  out  entirely.  A  preamble, 


88  THIS   CONSTITUTION. 

it  is  said,  is  no  part  of  a  statute.  Therefore,  by  a 
misnomer,  this  summary  and  epitome  of  the  whole 
Constitution  is  to  be  degraded  from  its  most 
important  position,  as  the  first,  most  authorita- 
tive, and  commanding  portion  of  the  instrument, 
to  the  performance  of  the  mere  secondary  and 
insignificant  -office  of  a  preamble ;  to  be  used,  not 
as  any  part  of  the  supreme  law,  but  only  by  way 
of  argument  in  the  construction  of  some  doubt- 
ful phraseology  in  other  parts  of  the  Constitu- 
tion. This  is  doing  no  justice  to  the  law,  but 
great  injustice  to  the  people  who  made  it.  The 
enacting  clause  is  perfectly  authoritative  in  its 
source,  —  the  people ;  peremptory  in  its  action,  — 
ordain  and  establish;  definite  and  exact  in  its 
subject, — this  Constitution;  and  distinct,  broad, 
and  extensive  in  its  purposes  and  ends,  em- 
bracing the  "  liberty,  safety,  and  welfare  of  the 
whole  Union,  and  all  its  people." 

§  63.  This  part  of  the  Constitution  being,  like 
all  the  rest,  the  supreme  law  of  the  land,  the 
ordained  and  established  purposes  and  ends  of 
the  people  in  making  it  are  to  be  accomplished 
thereby,  if,  consistently  with  the  moral  law  and 
the  principles  of  free  government,  they  may  be ; 
and  "  the  government  of  the  United  States," 
to  whom  it  is  committed  for  administration  and 
execution,  is  responsible  to  the  nation  —  the 
whole  people  —  for  the  performance  of  the  whole 
of  them.  The  powers  and  duties  of  the  govern- 
ment are  not  to  be  distinguished  or  separated; 


THIS  CONSTITUTION.  89 

nor  to  be  held  inadequate  to  the  plenary  accom- 
plishment of  the  declared  intentions,  and  per- 
emptory purposes  of  the  people  of  the  United 
States. 


CHAPTER    YI. 

THE  PURPOSES. 

§  64.  WE  will  next  consider  the  character  and 
extent  of  these  six  express  purposes,  constitut- 
ing the  duties  and  limiting  the  powers  of  the 
national  government  under  the  Constitution. 
They  are  thus  expressed  in  the  first  sentence  of 
the  Constitution:  1.  "To  form  a  more  perfect 
Union;  2.  establish  justice;  3.  insure  domestic 
tranquillity ;  4.  provide  for  the  common  defence ; 
5.  promote  the  general  welfare;  and,  6.  secure 
the  blessings  of  liberty  to  ourselves  and  our 
posterity." 

FIRST,  — A  MORE  PERFECT  UNION. 

§  65.  This  has  reference  to  the  condition  of 
the  Union,  as  it  existed  in  1787,  under  the  Ar- 
ticles of  Confederation;  which,  by  implication, 
it  pronounces  imperfect,  and  thereupon  declares 
the  purpose  of  forming  one  more  perfect.  Let 
us  recur  a  little  in  detail  to  the  process  by  which 
the  independent  nationality  and  sovereignty, 

[90] 


A  MORE  PERFECT  UNION.  91 

that  on  the  division  of  the  British  empire  fell  to 
the  American  portion  of  it,  became  deteriorated. 
All  the  rights  of  sovereignty  and  governmental 
power,  which  had  previously  been  exercised  over 
them  by  the  king  and  Parliament,  or  under 
the  authority  of  either,  having  been  abrogated, 
and  allegiance  totally  abjured,  remained  with 
the  new  nation,  to  be  used  or  disposed  of  by 
them,  and  in  the  mean  time  devolved  inevitably 
upon  the  people.  The  people,  for  this  corporate 
or  national  purpose,  were  one  and  indivisible. 
As  it  was  necessary  they  should  act,  and  as  they 
could  not  act  collectively,  they  must  act  by 
agents  or  representatives. 

§  66.  Having  no  written  constitution  or  other 
legal  organization,  limiting  the  authority  of  their 
agents,  those  whom  the  people  chose  to  recog- 
nize as  their  representatives  acted  by  a  general 
and  unlimited  power,  in  tlie  name  of  tlie  good 
people,  and  exercised  all  their  authority,  sove- 
reignty, and  supremacy.  It  made  no  difference 
when,  how,  by  whom,1  or  with  what  commissions, 
the  representatives  or  agents  were  appointed, 
though  most  of  these  were  sufficiently  broad  for 
any  purpose  whatever.  "Witness  the  following: 
In  the  Virginia  Convention,  June  20,  1776, 

1  None  of  them  were  appointed  by  any  legal  authority  till  after  the 
organization  of  the  States,  certainly  not  by  any  under  the  king's  govern- 
ment; and  there  was  no  other.  Some  delegates  to  Congress  were 
appointed  by  conventions  of  citizens  in  small  localities,  as  towns  or 
counties;  but  few,  if  any,  were  appointed  by  any  general  convention, 
properly  representing  a  whole  colony. 


92  A  MORE  PERFECT  UNION. 

f?  Resolved,  that  .  .  .  Esquires,  be,  and  they 
hereby  are,  appointed  delegates  to  represent  this 
colony  in  the  general  Congress,  for  one  year 
from  the  llth  of  August  next."  July  9, 1776,  the 
Convention  of  New  York  authorized  her  dele- 
gates w  to  concert  and  adopt  all  such  measures 
as  they  may  deem  conducive  to  the  happiness 
and  welfare  of  the  United  States."  "  Pennsyl- 
vania, in  Convention,  July  20,  1776,  proceeded 
to  the  election  of  delegates  to  serve  in  the  Con- 
tinental Congress  and  chose  for  that  service 
Dr.  Benjamin  Franklin,"  &c.  "  State  of  New 
Hampshire,  in  House  of  Representatives,  Sept. 
12,  1776,  voted  that  ...  be,  and  hereby  is,  ap- 
pointed a  delegate  to  represent  this  State  at  the 
Continental  Congress,  one  year  next  ensuing. 
In  Council  eodem  die,  read  and  concurred." 
Massachusetts,  Dec.  10,  1776,  expressly  author- 
ized then*  delegates  to  direct  any  measures  "  for 
prosecuting  the  war,  concluding  peace,  con- 
tracting alliances,  establishing  commerce,"  and 
the  rights  and  liberty  of  the  American  States; 
in  fact,  to  do  any  thing  which  the  Declaration  of 
Independence  alleged  that  independent  nations 
could  do. 

§  67.  The  appointing  power  itself  had  no 
other  than  a  Revolutionary  authority;  and  their 
acts,  like  those  of  their  appointees,  whether 
in  form  recommendatory  or  mandatory,  were 
received  and  obeyed  as  laws,  because  they  ex- 
pressed the  will  of  the  people,  and  were  accepted 


A  MORE  PERFECT  UNION.  93 

and  approved  as  such.  In  this  manner  the  Con- 
tinental Congress  became  and  was  the  supreme 
power  in  the  land.  They  exercised,  in  the  name 
of  the  people,  all  the  powers  of  a  complete, 
independent  national  sovereignty,  and  were  sus- 
tained and  supported  therein  by  the  nation. 
Before  the  Declaration  of  Independence,  they 
styled  themselves  the  "  guardians  of  the  rights 
and  liberties  of  the  Colonies ; "  and  were  called, 
in  the  constitution  of  New  Jersey,  "  the  Supreme 
Council  of  the  American  Colonies."  Chief 
Justice  Jay  said,1  "  To  all  general  purposes,  we 
have  uniformly  been  one  people;  each  individual 
citizen  everywhere  enjoying  the  same  natural 
rights,  privileges,  and  protection.  As  a  nation, 
we  made  peace  and  war ;  as  a  nation,  we 
have  vanquished  our  common  enemies;  as  a 
nation,  we  have  formed  alliances,  and  made 
treaties,  and  entered  into  various  compacts  and 
conventions  with  foreign  States." 

§  68.  Within  the  first  month  of  their  actual 
existence,  as  the  organs  of  the  Union,  they 
resolved  unanimously,  "  That,  from  and  after  the 
first  day  of  December  next  (1774),  there  be  no 
importation  into  British  America,  from  Great 
Britain  or  Ireland,  of  any  goods,  wares,  or 
merchandise  whatsoever."  Within  a  few  days 
afterwards,  they  made  and  published  a  solemn 
Declaration  of  the  rights  and  liberties  of  their 
constituents,  which  has  never  been  revoked  or 

1  Federalist,  No.  2. 


94  A  MORE  PERFECT   UNION. 

annulled.  Among  these  is  the  following,  which 
has  been  repeated  and  re-enacted,  in  all  possible 
forms,  up  to  the  present  time :  — 

:f  That  the  inhabitants  of  the  English  Colo- 
nies in  North  America,  by  the  immutable  laws 
of  nature,  the  principles  of  the  English  Consti- 
tution, and  the  several  charters  and  compacts, 
.  .  .  are  entitled  to  life,  liberty,  and  property; 
and  that  they  have  never  ceded,  to  any  sovereign 
power  whatever,  a  right  to  dispose  of  either 
without  their  consent."  They  also  unanimously, 
in  a  form  which  they  considered  solemnly  bind- 
ing on  themselves  personally  and  their  consti- 
tuents, totally  abolished  the  slave-trade,  from  and 
after  the  same  first  day  of  December,  1774. 

§  69.  In  1775  the  Provincial  Convention  of 
Massachusetts  petitioned  Congress  for  explicit 
advice  "  respecting  the  powers  of  civil  govern- 
ment," declaring  their  readiness  to  "  submit  to 
such  general  plan  as  the  Congress  may  direct 
for  the  colonies."  Congress  answered,  June  9, 
by  recommending  them  "  to  conform,  as  near 
as  may  be,  to  the  spirit  and  substance  of  the 
charter,  .  .  .  until  a  governor  of  his  Majesty's 
appointment  will  consent  to  govern  the  colony 
according  to  its  charter."  ~New  Hampshire 
requested  K  the  advice  and  direction  of  the 
Congress  with  respect  to  a  method  of  our 
administering  justice,  and  regulating  our  civil 
police ; "  and  it  was  recommended  to  them  to 
establish  such  a  form  of  government  .  .  .  "as 


A  MORE  PERFECT  UNION.  95 

will  most  effectually  secure  peace  and  good 
order  in  the  province,  during  the  continuance 
of  the  present  dispute  between  Great  Britain 
and  the  colonies."  A  similar  course  was  taken 
with  South  Carolina  and  Virginia,  before  the 
adoption  of  the  general  Resolution  of  May  10, 
1776. 

§  70.  This  Resolution — after  a  preamble  recit- 
ing that  the  people  have  been  excluded  from 
the  protection  of  the  British  crown;  that  their 
humble  petitions  are  unanswered;  that  the  whole 
force  of  the  kingdom  is  exerted  for  their  destruc- 
tion; that  it  is  against  reason  and  good  con- 
science that  the  necessary  oaths  for  the  support 
of  any  government  under  the  crown  should 
now  be  taken;  that  it  is  necessary  that  all  au- 
thority under  the  crown  should  be  totally  sup- 
pressed; and  that  all  the  powers  of  government 
should  be  exerted,  under  the  authority  of  the 
people,  for  the  preservation  of  internal  peace  and 
good  order,  as  well  as  for  the  defence  of  their 
lives,  liberties,  and  properties  against  the  hostile 
invasions  and  cruel  depredations  of  their  ene- 
mies "  —  is  as  follows  :  "  Resolved,  That  it  be 
recommended  to  the  respective  assemblies  and 
conventions  of  the  United  Colonies,  where  no 
government  sufficient  to  the  exigencies  of  their 
affairs  hath  been  hitherto  established,  to  adopt 
such  government  as  shall,  in  the  opinion  of  the 
representatives  of  the  people,  best  conduce  to 
the  happiness  and  safety  of  their  constituents  in 


96  A  MORE  PERFECT  UNION. 

particular,  and  America  in  general."  By  virtue 
of  this  resolution,  all  the  other  colonies  organ- 
ized their  own  local  governments;  and  all  of 
them,  in  some  form,  recognized  the  supremacy 
of  the  Continental  Congress.  The  general 
government  itself,  however,  as  well  as  the  local 
governments,  was  at  this  time  considered  as 
temporary  only,  during  the  contest  for  their 
liberties  ;  but  though  temporary,  yet,  while  it 
continued,  it  was  supreme,  absolute,  and  final. 

§  71.  In  June  they  settled  the  right  of  citizen- 
ship as  follows,  viz.,  w  Resolved,  That  all  persons 
abiding  within  any  of  the  United  Colonies,  and 
deriving  protection  from  the  laws  of  the  same, 
owe  allegiance  to  the  said  laws,  and  are  members 
of  such  colony;  and  that  all  persons  passing 
through,  visiting,  or  making  a  temporary  stay  in 
any  of  the  said  colonies,  being  entitled  to  the 
protection  of  the  laws  during  the  time  of  such 
passage,  visitation,  or  temporary  stay,  owe, 
during  the  same,  allegiance  thereto."  A  few 
weeks  later,  in  order  to  induce  foreigners  in  the 
British  army  to  remain  and  "  become  members 
of  these  States,"  Congress  ordered  that  all  such 
shall  be  "  invested  with  the  rights,  privileges, 
and  immunities  of  natives,  as  established  by  the 
laws  of  these  States."  — "  The  Provincial  Con- 
vention of  New  York  was  directed  immediately 
to  render  Hudson's  River  defensible."  They 
resolved,  "  That  no  bill  of  exchange,  draft,  or 
order  of  any  officer  in  the  [British]  army 


A  MORE  PERFECT  UNION.  97 

or  navy  ...  be  received  or  negotiated,  or  any 
money  supplied  to  them  by  any  person  in  Amer- 
ica; "  "  that  no  provisions  or  necessaries  of  any 
kind  be  furnished  or  supplied  to  or  for  the  use 
of  the  British  army  or  navy;  that  no  vessel 
employed  in  transporting  British  troops  be 
freighted  or  furnished  with  provisions  or  neces- 
saries, until  further  orders  from  this  Congress." 
Provisions  were  made  for  collecting  saltpetre 
and  sulphur,  to  be  manufactured  into  gun- 
powder, for  the  use  of  the  Continent; "  and  it 
resolved,  "  that  the  saltpetre  and  sulphur,  col- 
lected in  consequence  of  these  resolves  of 
Congress,  be  paid  for  out  of  the  Continental 
fund." 

§  72.  They  appointed  a  "  Commander-in-chief," 
and  other  officers,  "  of  the  Army  of  the  United 
Colonies,  and  of  all  the  forces  now  raised  or  to 
be  raised  for  the  defence  of  American  liberty, 
and  for  repelling  every  hostile  invasion  thereof; " 
and  adopted  a  body  of  "  Rules  and  Regulations 
for  the  Continental  Army."  They  established 
a  Post,  and  appointed  a  "  Postmaster-general 
of  the  United  Colonies,"  and  issued  paper 
money  or  bills  of  credit  in  their  name.  They 
authorized  and  commissioned  public  vessels  of 
war,  and  privateers;  made  a  code  of  regulations 
relating  to  prizes  and  captures;  and  instituted 
courts  for  their  adjudication  and  condemna- 
tion. They  established  "  the  Navy  of  the  United 
Colonies,"  and  made  a  code  of  "  Rules  for  its 

7 


98  A  MORE  PERFECT   UNION. 

regulation."  They  authorized  an  attack  on  the 
British  troops  in  Boston,  "  in  any  manner  the 
General  may  think  expedient,  notwithstanding 
the  town  and  property  in  it  may  thereby  be 
destroyed."  April  6,  1776,  they  made  new 
regulations  of  foreign  trade,  and  again  pro- 
hibited the  "  importation  of  slaves  into  any  of  the 
thirteen  colonies."  Though  some  of  these  acts 
were  in  the  form  of  recommendations,  they  were 
uniformly  considered,  treated,  and  obeyed  as 
laws. 

§  73.  All  these,  and  many  other  similar  powers 
of  supreme  sovereignty  and  nationality,  were 
exercised  by  the  Continental  Congress,  in  the 
name  of  the  people,  while  they  claimed  to  be, 
and  intended  to  continue,  an  integral  part  of 
the  British  empire,  provided  they  could  do  it 
on  terms  compatible  with  their  rights  and 
liberties.  But,  on  the  fourth  day  of  July,  1776, 
they  cast  off  this  temporary  character  of  their 
government,  declared  the  United  Colonies  free 
and  independent  States,  and  assumed,  "AS  OJSTE 
PEOPLE,"  a  "  separate  and  equal  station  .  .  . 
among  the  powers  of  the  earth ; "  with  "  full 
power  to  levy  war,  conclude  peace,  contract  alli- 
ances, establish  commerce,  and  do  all  other  acts 
and  things  which  independent  States  may  of  right 
do,"  including  every  power  of  distinct  nation- 
ality and  supreme  sovereignty.  Such  was  the 
Union  in  its  origin,  and  such  the  rights  and 
duties  of  its  government,  when  the  British 


A  MORE  PERFECT  UNION.  99 

empire  first  became  permanently  and  irrevocably 
divided.  The  American  portion  of  it  had  as 
ample  powers,  in  reference  to  themselves  and 
their  concerns,  as  the  whole  had  possessed 
before,  and  as  the  European  portion  retained 
afterwards  in  reference  to  the  remainder. 

§  74.  In  this  Declaration,  Congress  announce 
themselves,  and  assume  to  be,  the  "  Represen- 
tatives of  the  United  States,"  acting  in  the 
name  and  by  the  authority  of  the  people.  The 
colonies,  individually,  are  not  named  in  the  in- 
strument, nor  is  any  one  of  them.  The  docu- 
ment does  not  purport  to  be  the  act  of  a  number 
of  aggregate  communities,  either  as  Colonies  or 
States,  but  of  the  "  Representatives  of  the 
United  States,  in  General  Congress  assembled ; " 
and  was  signed  by  them,  not  as  delegates  from 
the  particular  colonies,  by  whose  people  they 
had  been  elected  and  sent,  but  was  signed  by 
them  promiscuous^  and  individually  only,  as 
members  of  the  "  General  Congress "  of  the 
United  States.1  This  was  not  the  imperfect 
Union,  under  the  confederation  or  league,  which 
the  Constitution  announces  the  purpose  to  make 
w  more  perfect." 

§  75.  The  disposition  to  fritter  away  the 
national  authority  was  early  noticed  in  the  prog- 
ress of  the  Articles  of  Confederation  through 

1  The  idea  of  voting  and  acting  in  Congress  by  States  grew  up  after 
the  State  governments  were  organized,  and  out  of  their  attempt  to  form 
a  treaty  or  league  of  Confederation,  which  did  not  go  into  legal  operation 
till  1781,  when  the  war  substantially  came  to  a  close. 


100  A  MORE  PERFECT  UNION. 

Congress.  They  were  reported  in  that  body, 
in  their  original  form,  soon  after  the  Declaration 
of  Independence.  As  they  were  drawn  up  by  the 
same  men  who  had  just  signed  that  instrument,1 
it  may  well  be  supposed  that  they  then  exhibited 
something  of  the  same  spirit.  '  They  were,  in 
fact,  but  a  digest,  and  even  a  limitation,  in  the 
shape  of  a  written  compact,  of  those  undefined 
and  discretionary  sovereign  powers  which  were 
delegated  by  the  [people  of  the]  Colonies  to 
the  Congress  of  1774-75,  and  which  had  been 
freely  exercised  and  implicitly  obeyed.  A 
remarkable  instance  of  the  exercise  of  this 
original,  dormant,  and  vast  discretion,  appears 
on  the  Journals  of  Congress  the  latter  end  of 
1776.2  Congress  transferred  to  the  Commander- 
in-chief,  for  the  term  of  six  months,  complete 
dictatorial  power  over  the  liberty  and  property 
of  the  citizens  of  the  United  States;  in  like 
manner  as  the  Roman  Senate,  in  critical  times 
of  the  Republic,  was  wont  to  have  recourse  to  a 
dictator,  ne  quid  republica  detrimenti  capiat" 3 

§  76.  They  were,  however,  long  held  under 
the  process  of  alteration  and  deterioration, 
under  the  name  of  amendment,  mostly  in  com- 
mittee, so  that  the  progress  of  dilapidation  does 
not  appear  on  the  Journal,  though  it  is  said  to 
have  been  as  rapid  as  it  was  effectual,  till  it 

1  They  were,  however,  actually  drawn  by  John  Dickinson,  who  had 
perseveringly  opposed  the  Declaration,  and  refused  to  sign  it,  even  after 
it  had  been  passed,  under  the  instructions  of  his  own  constituents. 

*  Vol.  ii.  p.  475.  3  1  Kent's  Com.  198. 


A  MORE  PERFECT  UNION.  101 

• 

finally  passed  Congress,  and  was  adopted  by 
the  State  legislatures  (1781)  in  the  shape  it 
retained  when  the  Constitution  was  made  ; 
assuming  the  absolute  sovereignty  and  inde- 
pendence of  each  particular  State,  with  the 
retention  of  "  every  power,  jurisdiction,  and 
right  which  is  not,  by  this  confederation,  ex- 
pressly delegated  to  the  United  States  in  Con- 
gress assembled."  This  was  sent  to  the  several 
States  in  JSTovember,  1777,  and  was  adopted  by 
every  State  legislature  by  March,  1781,  in 
"  Articles  of  Confederation  and  perpetual  Union," 
which  assumed  to  confer  the  most  important 
powers  of  national  sovereignty  on  Congress, 
with  corresponding  restrictions  on  the  States, 
and  binding  them  to  perpetual  union  irrevo- 
cably, and  obedience  in  the  premises  ;  but 
without  any  executive  or  judicial  authority,  or 
other  means  of  enforcing  the  smallest  requi- 
sition of  men,  money,  or  measures.  ?  The 
powers  of  Congress,  as  enumerated  in  the 
Articles  of  Confederation,  would  perhaps  have 
been  competent  for  all  the  essential  purposes 
of  the  Union,  had  they  been  duly  distributed 
among  the  departments  of  a  well-balanced  gov- 
ernment, and  been  carried  down,  through  the 
medium  of  a  federal,  judicial,  and  executive 
power,  to  the  individual  citizens  of  the  Union." l 
§  77.  The  first  constitution  of  Maryland, 
formed  the  next  month  after  the  Declaration  of 

i  1  Kent's  Com.  199. 


102  A  MORE  PERFECT  UNION. 

Independence  (Aug.  14,  1776),  declares,  "that 
the  people  of  this  State  ought  to  have  the  sole 
and  exclusive  right  of  regulating  the  internal 
government  and  police  thereof; "  and  before  the 
State  government  was  organized,  by  virtue  of 
this  Constitution,  adopted  like  all  the  rest  under 
the  auspices  of  Congress,  the  State  convention 
passed  "  certain  resolutions  "  respecting  the  rais- 
ing of  their  allotment  of  soldiers,  which  seem 
to  have  been  considered  by  Congress  as  an 
attempt  at  nullification  ;  for  they  thereupon 
resolved  "  that  the  faith  that  this  House,  by 
virtue  of  the  power  with  which  they  were  vested, 
have  plighted  must  be  obligatory  upon  their  con- 
stituents; that  no  one  State  can,  by  its  own  act, 
be  released  therefrom."  The  constitution  of 
North  Carolina,  dated  Dec.  18,  1776,  contains 
the  same  Article  above  cited  from  Maryland. 
The  constitution  of  New  York,  of  1777,  reciting 
the  exclusion  of  the  inhabitants  "  from  the  pro- 
tection of  the  British  crown ;  the  many  and  great 
inconveniences  of  their  temporary  government 
by  [provincial]  congress  and  committees  ; "  .  .  . 
"the  resolution  of  the  Continental  Congress  re- 
commending local  governments  to  be  established 
by  the  people  of  their  respective  colonies ; "  and 
their  "  Declaration  of  Independence,"  —  deduces 
therefrom,  that  "  all  power  whatever  therein  [in 
that  State]  hath  reverted  to  the  people  thereof; " 
and  then  proceeds,  "  in  the  name  and  by  the 
authority  of  the  good  people  of  this  State, 


A  MORE  PERFECT  UNION.  103 

[to]  ordain,  determine,  and  declare  that  no 
authority  shall,  on  any  pretence  whatever,  be 
exercised  over  the  people  or  members  of  this 
State,  but  such  as  shall  be  derived  from  and 
granted  by  them." 

§  78.  By  the  Massachusetts  constitution  of 
1780,  which,  notwithstanding  divers  general 
revisions  since  the  date  of  the  Constitution 
of  the  United  States,  still  remains,  in  this  par- 
ticular, unaltered,  the  people  thereof  declare 
that  they  are  "  a  free,  sovereign,  and  inde- 
pendent body  politic  or  State,  and  have  the 
sole  and  exclusive  right  of  governing  them- 
selves, .  .  .  and  do,  and  for  ever  hereafter  shall, 
exercise  and  enjoy  every  power,  jurisdiction,  and 
right,  which  is  not,  or  may  not  hereafter  be,  by 
them  expressly  delegated  to  the  United  States 
in  Congress  assembled."  And  the  constitution 
of  Kew  Hampshire,  of  1783,  although  perhaps 
justly  considered  one  of  the  most  loyal  to  the 
United-States  government  of  any  State  in  the 
Union,  adopts  the  Article  in  the  same  words; 
and  there  they  stand  unaltered  to  this  day,  as 
taken  in  both  instances  from  the  Articles  of 
Confederation.  That  system,  instead  of  being 
a  government  of  the  people,  for  the  people, 
and  by  the  people,  was  merely  a  league  or 
treaty  between  the  diiferent  State  legislatures, 
assuming  to  themselves  sovereignty  and  inde- 
pendence, and  was  destitute  of  any  sanction  for 
its  requirements.  The  State  governments  were 


104  A  MORE  PERFECT   UNION. 

all  formed  under  the  auspices  of  the  w  United 
States  in  Congress  assembled,"  and  recognized, 
in  some  form,  their  position  as  component  parts 
of  the  Union,  and  their  subordination  to  its 
government.  State  legislatures,  so  situated, 
could  not,  by  any  combination,  treaty,  or  league 
among  themselves,  augment  the  powers  of  each 
other,  or  transfer  any  that  they  legitimately 
possessed  to  another  government ;  nor  could  they 
rightfully  diminish  those  with  which  the  circum- 
stances and  the  acquiescence  of  the  people  had 
invested  the  Union,  and  by  virtue  of  which  the 
State  governments  themselves  were  inaugurated, 
sustained,  and  defended.  Founded,  constituted, 
and  administered  on  such  principles,  the  Confed- 
eration could  be  expected  to  come  to  no  better 
end  than,  at  the  close  of  six  years  from  its 
adoption,  it  short  history  shows.  Though  it 
was  originally  proposed  by  members  of  Con- 
gress, and  by  them  transmitted  to  the  State 
legislatures  for  their  adoption,  the  United  States 
are  nowhere  mentioned  as  a  party  to  it,  and,  as 
a  nation  or  independent  body  politic,  never  be- 
came such,  by  any  formal  act,  either  of  the  people 
or  of  their  authorized  representatives. 

§  79.  Mr.  Wilson,  afterwards  Mr.  Justice  Wil- 
son, of  the  Supreme  Court,  said  in  the  Convention 
of  1787,  "  Among  the  first  sentiments  expressed 
in  the  first  Congress,  one  was,  that  Virginia  is 
no  more,  that  Massachusetts  is  no  more,  that 
Pennsylvania  is  no  more,  &c.  We  are  now  one 


A  MORE  PERFECT  UNION.  105 

nation  of  brethren;  we  must  bury  all  local 
interests  and  distinctions.  This  language  con- 
tinued for  some  time.  The  tables  at  length  began 
to  turn.  ISTo  sooner  were  the  State  governments 
formed,  than  their  jealousy  and  ambition  began 
to  display  themselves.  Each  endeavored  to  cut 
a  slice  from  the  common  loaf,  .  .  .  till  at  length 
the  Confederation  became  frittered  down  to  the 
impotent  condition  in  which  it  now  stands." 
It  is  not  doubtful  that  a  disposition  early  existed 
to  view  the  general  government  as  they  had 
been  accustomed  to  view  the  imperial  govern- 
ment, as  in  some  respect  exterior,  if  not  foreign, 
to  themselves,  and  thus  liable  to  distrust.  This 
feeling  did  not  arise,  however,  while  Congress 
was  the  only  authority  on  which  they  relied. 
It  rapidly  became  chronic  after  the  new  gov- 
ernments, under  the  auspices  of  Congress,  had 
been  organized  for  the  States.  The  interest 
principally  affected  by  it,  and  the  one  on  account 
of  which  it  was  studiously  fostered  and  en- 
couraged, was,  and  still  is,  the  slave  interest; 
as  being  adverse  to  the  justice,  liberty,  and 
equal  rights  of  the  Declaration  of  Indepen- 
dence and  of  the  Constitution.  Mr.  Wilson's 
short  and  plain  statement  of  the  actual  result 
of  thirteen  years'  experience  of  the  Union, 
the  last  six  years  only  being  under  the  Con- 
federation, is  corroborated  by  almost  every 
leading  'statesman  in  the  convention.  Mr. 
Madison  said,  in  the  same  debate,  "  Experience 


106  A  MORE  PERFECT  UNION. 

had  evinced  a  constant  tendency  in  the  States 
to  encroach  on  the  Federal  authority."  Mr. 
Charles  Pinckney  said,  w  If  the  States  were  left 
to  act  for  themselves  in  any  case,  it  would  be 
impossible  to  defend  the  national  prerogatives, 
however  extensive  they  might  be  on  paper." 
Alexander  Hamilton  was  of  the  opinion,  that, 
"if  the  general  government  is  too  weak  at  first, 
it  will  continually  grow  weaker.  The  ambition 
and  local  interests  of  the  respective  members 
will  be  constantly  undermining  and  usurping 
upon  its  prerogatives,  till  it  comes  to  a  disso- 
lution." Mr.  Wilson  conceived  that,  "  in  spite 
of  every  precaution,  the  general  government 
would  be  in  perpetual  danger  of  encroachments 
from  the  State  governments. 

§  80.  The  authors  of  the  "  Federalist,"  in  dis- 
cussing the  insufficiency  of  the  Confederation, 
say:1  "  Facts  too  stubborn  to  be  resisted  have 
produced  a  ...  general  assent  to  the  abstract 
proposition,  that  there  exist  material  defects  in 
our  national  system;  but  [some],  while  they  ad- 
mit that  the  government  of  the  United  States  is 
destitute  of  energy,  .  .  .  contend  against  con- 
ferring upon  it  those  powers  which  are  requisite 
to  supply  that  energy.  They  seem  still  to  aim  at 
things  repugnant  and  irreconcilable;  at  an  aug- 
mentation of  Federal  authority,  without  a  diminu- 
tion of  State  authority;  at  sovereignty  in  the 
Union,  and  complete  independence  in  the  mem- 

1  No.  15. 


A  MORE  PERFECT  UNION.  107 

bers.  They  still,  in  fine,  seem  to  cherish,  with 
blind  devotion,  the  political  monster  of  an  im- 
perium  in  imperio"  Mr.  Justice  Story  says,1 
"  The  States  notoriously  disregarded  the  rights 
and  prerogatives  admitted  to  belong  to  the  Con- 
federacy; and  even  the  requisitions  of  Congress, 
for  objects*  unquestionably  within  their  constitu- 
tional authority,  were  openly  derided  or  silently 
evaded." 

§  81.  This  brings  us  to  a  consideration  of  the 
remedy  adopted  by  the  PEOPLE,  which  was,  "  to 
form  a  more  perfect  Union; "  in  order  to  which 
they  "  ordain  and  establish  this  Constitution," 
creating  what  they  call  w  the  government  of  the 
United  States."  The  Constitution  of  the  gov- 
ernment, then,  was  the  means,  by  the  legitimate 
operation  of  which  they  intended  to  "  form  a 
more  perfect  Union."  We  have  seen  that  the 
imperfect  Union  under  the  Confederation,  which 
of  course  they  intended  to  avoid,  was  a  mere 
treaty  or  league  of  nominally  independent 
States,  without  power  to  control  its  own  mem- 
bers, or  the  means  of  reaching  the  individuals 
composing  them.  The  "  more  perfect  Union," 
therefore,  to  be  formed,  must  be  the  reverse  of 
this  in  both  respects.  It  must  be  the  "  supreme 
law  of  the  land,"  controlling  all  its  constituent 
parts  and  members,  whether  individual  or  cor- 
porate. "  The  idea  of  a  national  government 
involves  in  it  not  only  an  authority  over  indi- 

1  2  Com.  375. 


A  MORE  PERFECT  UNION". 


vidual  citizens,  but  an  indefinite  supremacy 
over  all  persons  and  things,  so  far  as  they 
are  objects  of  lawful  government."  —  w  In  some 
instances,  .  .  .  the  power  of  the  new  govern- 
ment will  act  on  the  States  in  their  collective 
characters." 1 

§  82.  Mr.  Hamilton  told  the  Convention, 2 
*  The  general  power,  whatever  be  its  form,  if  it 
preserves  itself,  must  swallow  up  the  State 
powers.  Otherwise,  it  will  be  swallowed  up  by 
them.  .  .  .  Two  sovereignties  cannot  co-exist 
within  the  same  limits."  The  same  sentiment 
was  expressed  by  several  of  the  most  distin- 
guished members  of  the  Convention,  and  ques- 
tioned by  none.  So  far  as  appears,  it  was 
accepted  by  all.  In  the  "Virginia  Convention, 
June  12,  1788,  Mr.  Grayson  called  it  "  a  political 
absurdity  to  suppose  that  there  can  be  two  con- 
current legislatures Must  it  not  strike 

every  man's  mind,  that  two  unlimited,  co-or- 
dinate, and  co-equal  authorities,  over  the  same 
subjects,  cannot  exist  together?"3  Accord- 
ingly, we  find  that  such  supremacy  is  the 
character  of  the  Constitution  and  of  the  gov- 
ernment it  creates,  as  given  in  its  own  words, 
on  the  face  of  the  instrument.  Such  a  gov- 
ernment, faithfully  administered  according  to 
the  spirit  of  its  formation,  is  fully  adequate,  at 
least,  to  this  first  and  important  purpose  of  its 

1  Madison  in  the  "  Federalist."     See  Nos.  39,  40. 

2  Speech  of  June,  1787.  3  3  Elliot's  Debates,  284. 


A  MORE  PERFECT  UNION.  109 

creation,  w  to  form  a  more  perfect  Union."  It 
must  necessarily  form  it,  and  preserve  it,  as 
long  as  it  remains  or  is  capable  of  preserving 
its  own  existence,  and  defending  its  own  prerog- 
atives. 

§  83.  The  contemplated  "  more  perfect  Union  " 
was  a  union  of  the  people  of  the  United  States 
among  themselves.  They  are  the  only  parties 
mentioned  or  alluded  to  in  this  part  of  the 
instrument.  No  individual  State  is  mentioned 
or  indicated  as  a  party,  or  has  any  claim  to  be 
so  considered.  That  this  was  well  understood 
by  the  friends  of  the  Constitution  is  manifest 
from  its  terms,  as  well  as  by  the  reasons  given 
for  its  adoption.  That  it  was  also  understood  by 
its  opponents  is  equally  manifest,  from  the  spirit 
and  manner  in  which  its  adoption  was  originally 
resisted,  and  by  the  altered  form  which  the 
authors  of  the  late  Rebellion  have  given  to  the 
parallel  portion  of  their  own  constitution.  They 
say  :  ?  We,  the  people  of  the  Confederate 
States,  each  State  acting  in  its  sovereign  and 
independent  character,  in  order  to  form  a  per- 
manent federal  government,"  &c.,  w  ordain  and 
establish,"  &c.;  thus  changing  the  whole  cha- 
racter of  the  instrument,  and  carrying  it  back 
to  the  very  imperfect  union  for  which  our 
fathers  intended  to  substitute  one  "more  per- 
fect," such  a  Union  as  would  make  them  what 
the  Declaration  of  Independence  had  pro- 
nounced them  to  be,  "  one  people,"  with  all 


110  A  MORE  PERFECT  UNION. 

the   rights    and    powers   of    other   independent 
nations. 

§  84.  The  intention  to  do  this  was  well  ex- 
pressed by  the  Congress  of  the  Confederation, 
in  calling  the  Constitutional  Convention  to  form 
"  a  firm  national  government,"  ..."  adequate 
to  the  exigencies  of  government  and  the  preser- 
vation of  the  Union."      The  Convention  itself 
expressed  the  same  idea  in  their  first  resolution 
thus  :  w  That   a   national  government  ought  to 
be   established,  consisting   of  a  supreme  legis- 
lative,  executive,    and  judiciary;"    and,   lastly, 
the  people  of  the  United  States  said  the  same 
thing,  by  ordaining  and  establishing  just  such 
a    government.      The    authority   of  a  common 
and  adequate  supreme  power,  to   guard  rights 
and  prevent  wrongs,  is  of  itself  a  perfect  and 
perpetual  bond  of  union,  —  not  a  union  between 
other  parties  not  named,  but  between  the  people 
themselves.      This  is  the  Union  that   a   single 
national    government    makes    and    perpetuates. 
A  confederate  government  between  States  is  a 
treaty  or  league.      A  "  perfect  Union  "  among 
a  people  is  a  nation.     The  difference  is  no  more 
plain  and  palpable  on  the  face  of  the  two  instru- 
ments, than   it   is   and  always  was   thoroughly 
understood  by  all  the  parties  concerned.     Chief 
Justice  Jay  remarked,1  "  Not  only  the  first,  but 
every  succeeding  Congress,  as  well  as  the  late 
Convention,   have    invariably    joined  with    the 

1  Federalist,  No.  2. 


A  MOEE  PERFECT  UNION.  Ill 

people  in  thinking  that  the  prosperity  of  America 
depended  on  its  union.  To  preserve  and  per- 
petuate it  was  the  great  object  of  the  people  in 
forming  the  Convention,  and  it  is  the  great  object 
of  the  plan  which  the  Convention  has  advised 
them  to  adopt;"  and,  after  it  was  adopted,  he 
would  have  had  the  authority  of  the  Constitution 
for  adding,  "  It  was  a  great  object  of  the  people 
of  the  United  States  in  its  adoption; "  for  so 
they  say  in  this  enacting  clause. 

§  85.  The  first  dilapidation  from  the  original 
principle  of  national  unity,  afterwards  sanc- 
tioned in  the  Declaration  of  Independence  as 
"  one  people,"  to  the  destructive  doctrine  of 
State  sovereignty  and  independence,  was  re- 
traced or  retracted,  and  disavowed  by  the  pee- 
ple,  in  the  formation  of  the  Constitution.  The 
second  substitution  of  State  rights  or  State 
sovereignty,  for  the  supremacy  of  the  constitu- 
tional government  of  the  United  States,  has 
cost  the  nation  the  blood,  treasure,  and  deso- 
lation of  a  four  years'  rebellion  and  civil  war. 
The  third,  if  it  shall  now  be  inaugurated  as 
proposed,  by  subjecting  the  "  life,  liberty,  or 
property,"  the  "  defence,  welfare,"  and  happiness, 
of  persons  owing  allegiance  to,  and  entitled  to 
the  rights,  privileges,  and  immunities  of  natural- 
born  citizens  of  the  United  States  under  the 
Constitution,  to  the  tender  mercies  of  a  privi- 
leged class  of  local  taskmasters,  acting  in  the 
name  of  State  rights  or  otherwise,  will  terminate 


112  A  MOEE  PERFECT  UNION. 

in  a  more  disastrous  penalty,  which,  though  we 
may  escape,  we  shall  not  escape  the  unutterable 
disgrace  of  leaving  as  a  cruel  legacy  to  our 
children. 


CHAPTEE    TIL 

ESTABLISH  JUSTICE. 

§  86.  THE  second  avowed  purpose  of  the 
American  people  in  ordaining  their  Constitution 
was  to  "  establish  justice."  This  may  be  said 
to  be  an  ultimate  object  of  all  government.  It 
includes  the  doing  justice  themselves  among  the 
nations,  their  peers,  and  to  their  subjects  and 
subordinates  ;  requiring  and  administering  it 
among  all  people  within  their  jurisdiction,  in 
their  intercourse  with  each  other,  and  prevent- 
ing or  punishing  every  species  o  injustice.  No 
human  government  can  be  expected  to1  accom- 
plish all  this,  any  more  than  any  thing  else,  per- 
fectly. Not  even  the  divine  government  so  does 
it  in  this  imperfect  world.  But  civil  government 
is  the  divine  ordinance  for  making  the  effort 
among  men;  and  the  human  government  that 
makes  the  nearest  approach  to  its  accomplish- 
ment comes  the  nearest  to  answering  the  pur- 
pose of  its  creation.  The  annunciation,  on  the 
face  of  the  Constitution,  that  the  establishment 

8'  [113] 


114  ESTABLISH  JUSTICE. 

of  justice  is  the  purpose  of  the  people  of  the 
United  States  in  ordaining  the  government, 
places  justice  itself  at  the  foundation  of  the 
fabric,  and  prescribes,  as  a  duty,  that  the  whole 
administration  of  it  should  be  on  that  principle. 
Neither  the  people  nor  their  government,  to  be 
sure,  have  any  rightful  power  to  authorize  in- 
justice; but  this  is  very  different  from  a  positive 
ordinance  to  establish  justice.  This  requires 
justice  universally,  and  with  the  requirement 
supplies  the  means  and  the  power  to  execute 
it,  to  the  extent  of  the  region  over  which  they 
rule. 

§  87.  "  Prior  to  the  date  of  the  Constitution, 
.  .  .  the  United  States  had,  by  taking  a  place 
among  the  nations  of  the  earth,  become  amenable 
to  the  law  of  nations;  and  it  was  their  interest, 
as  well  as  their  duty,  to  provide  that  those  laws 
should  be  respected  and  obeyed.  In  their 
national  character  and  capacity,  the  United 
States  were  responsible  to  foreign  nations  for 
the  conduct  of  each  State,  relative  to  the  law  of 
nations  and  the  performance  of  'treaties ;  and 
there  the  inexpediency  of  referring  all  such 
questions  to  State  courts,  and  particularly  to 
the  courts  of  delinquent  States,  became  apparent. 
While  all  the  States  were  bound  to  protect 
each,  and  the  citizens  of  each,  it  was  highly 
proper  and  reasonable,  that  they  should  be  in  a 
capacity,  not  only  to  cause  justice  to  be  done 
to  each  and  the  citizens  of  each,  but  also  to 


ESTABLISH  JUSTICE.  115 

cause  justice  to  be  done  by  each,  and  the  citizens 
of  each;  and  that  not  by  violence  and  force,  but 
by  a  stable,  sedate,  and  regular  course  of  judicial 
procedure." l 

§  88.  Notwithstanding  it  thus  places  justice 
as  the  foundation  of  the  government,  and  re- 
quires it  to  be  administered  on  that  principle, 
much  pains  has  been  taken  to  prove  that  it 
nevertheless  actually  authorizes  or  recognizes 
absolute  injustice.  To  establish  this,  three  dif- 
ferent clauses  of  the  Constitution  have  been 
cited  as  showing  an  infringement  of  the  in- 
alienable rights  of  man,  in  allowing  one  man  to 
acquire  an  ownership  or  right  of  property  in 
another,  and  so  admitting  of  absolute  chattel 
slavery.  The  first  is  where  the  people  are 
divided  into  classes,  for  certain  purposes,  under 
the  names  of  free  persons  and  other  persons. 
The  second  is  where  Congress  is  restrained 
temporarily  from  interfering  with  the  migration 
of  persons.  And  the  third  is  where  persons 
held  to  service  or  labor,  and  escaping,  are  re- 
quired to  be  returned.  That  neither  nor  all  of 
these  do  any  such  thing  as  is  charged,  is  elabo- 
rately shown  elsewhere.  It  is  only  necessary 
to  remark  here,  that  none  of  them  authorize 
any  injustice,  or  recognize  any  such  right  as  is 
supposed.  It  is  not  known,  that  any  other  parts 
of  the  Constitution  have  ever  been  relied  upon 
to  show  that  it  violates  the  sound  principles  of 

1  Per  Jay,  Chief  Justice,  in  Chisholm  v.  Georgia,  2  Dall.  Kep.  419. 


116  DOMESTIC   TRANQUILLITY. 

justice  and  moral  right,  which  it  inculcates  and 
professes  to  establish. 

DOMESTIC    TRANQUILLITY. 

§  89.  The  third  great  purpose,  which  the 
American  people  constitute  their  government 
to  effect,  is  to  "  insure  domestic  tranquillity." 
This  is  done  by  the  certainty  and  efficiency 
with  which  justice  is  administered  and  enforced 
among  men,  and  every  species  of  wrong  and 
injustice  is  suppressed  or  punished,  making  all 
persons  secure  and  safe  in  the  possession  and 
enjoyment  of  their  rights,  and  removing  all  in- 
ducement to  riot,  tumult,  and  aggression,  by 
taking  away  all  possibility  of  their  success.  The 
same  means  and  the  same  authority  that  estab- 
lish and  maintain  justice  in  the  land,  make  the 
people  tranquil,  contented,  and  happy  in  the 
pursuit  and  enjoyment  of  their  own  rights, 
without  motive  or  inducement  to  agitation  or 
insurrection,  and  without  an  excuse  for  indi- 
vidual malice  to  attempt  the  gratification  of 
personal  retaliation  or  revenge.  All  the  powers 
of  the  Constitution  that  require  and  enable  the 
different  departments  of  the  government  to 
administer  it  with  justice  and  equity,  and  espe- 
cially all  the  powers  of  the  judiciary  that  en- 
able them  to  administer  the  law  on  the  same 
principles  between  man  and  man,  tend  direct- 
ly to  the  accomplishment  of  this  part  of  the 


DOMESTIC  TRANQUILLITY.  117 

design  of  the  American  people,  and  of  course 
to  enable  the  government  to  fulfil  this  great 
duty  devolved  upon  them,  —  to  insure  domestic 
tranquillity. 


CHAPTEK   Yin. 

THE  COMMON  DEFENCE. 

§  90.  THE  words  w  common  defence  and  gene- 
ral welfare  "  were  not  inserted  in  any  part  of 
the  Constitution  till  Sept.  4,  1787,  just  ten 
working  days  before  the  labors  of  the  Conven- 
tion were  finished.  They  were  then  reported 
by  the  "  grand  Committee,"  appointed  on  motion 
of  Mr.  Sherman,  and  of  which  Mr.  Brearley  was 
chairman,  as  they  now  stand  with  the  rest  of 
the  second  line  of  the  8th  section  of  Article 
I. ;  and  adopted  in  the  same  form  by  the  Con- 
vention, on  the  same  day,  nem.  con.  Four  days 
after,  Sept.  8,  the  whole  work  of  the  Conven- 
tion was  sent  to  the  Committee  of  Revision, 
"  to  revise  the  style  and  arrange  the  Articles " 
agreed  on.  They  reported  the  final  draft,  with 
the  8th  section  as  it  now  stands  to  the  end 
of  the  second  line,  and  with  these  important 
words  also  added  to  the  new  or  amended  draft 
of  the  introductory  or  enacting  clause,  on  the 
12th.  On  the  14th,  the  Convention  added,  after 
the  words  w  general  welfare  "  in  the  8th  section, 

[118] 


THE  COMMON  DEFENCE.  119 

the  third  line  on  uniformity  as  it  now  stands; 
having,  on  the  13th,  approved  the  revised  draft 
of  the  enacting  clause,  without  objection.  On 
Saturday,  the  15th  of  September,  the  Convention 
completed  their  re-examination  of  the  whole 
draft  of  the  Committee  of  Revision.  They 
had  taken  up  every  clause  in  detail;  altered, 
amended,  or  approved  of  each  one  particularly; 
then  adopted  the  whole  generally;  and  sent  it 
to  the  proper  clerk  for  engrossment.  On  Mon- 
day, the  17th,  they  signed  it  as  engrossed,  and 
dissolved  the  Convention. 

§  91.  The  fourth  purpose,  in  the  order  in 
which  they  are  placed,  for  which  the  American 
people  established  their  government,  was  "  to 
provide  for  the  common  defence."  — "  Safety," 
says  Mr.  Jay,  "  seems  to  be  the  first  object." 
..."  The  safety  of  the  whole  is  the  interest  of 
the  whole,  and  cannot  be  provided  for  without 
government."1  This  may  be  said  to  be  the 
most  important  object  of  the  people,  and  the 
first,  most  obvious,  and  most  imperative  duty  of 
the  government.  It  is,  in  fact,  the  one  on  which 
the  value  of  all  the  others  depends.  If  a 
nation  cannot  defend  its  own  existence,  in  the 
possession  of  its  own  prerogatives  and  rights, 
it  is  of  little  consequence  what  those  rights  are, 
or  how  else  they  may  be  estimated  and  re- 
garded. This,  therefore,  is  an  object  of  primary 
necessity  for  every  nation,  and  a  primary  duty 

i  Federalist,  Nos.  3,  4. 


120  THE   COMMON  DEFENCE. 

for  every  independent  and  supreme  government, 
however  that  government  may  be  constituted 
and  organized. 

§  92.  Our  Constitution  rightfully  gives  it  this 
prominent  place  among  the  avowed  purposes  of 
the  people,  to  be  accomplished  by  their  govern- 
ment. The  necessity  and  duty  being  impera- 
tive; the  magnitude  of  the  obstacles  to  be  met 
and  overcome,  indefinite  and  unknown,  —  the 
power  to  meet  them,  in  order  to  be  commen- 
surate, without  which  they  are  worthless,  must 
be  broad  and  unlimited,  co-extensive  with  all 
the  resources  of  the  nation,  moral  and  physical, 
present  and  prospective.  "  It  is  in  vain  to 
oppose  constitutional  barriers  to  the  impulse  of 
self-preservation." 1 — "  Safety  from  external  dan- 
ger is  the  most  powerful  director  of  national 
conduct.  Even  the  ardent  love  of  liberty  will, 
after  a  time,  give  way  to  its  dictates.  The 
violent  destruction  of  life  and  property  incident 
to  war,  the  continual  effort  and  alarm  attendant 
on  a  state  of  continued  danger,  will  compel  na- 
tions the  most  attached  to  liberty  to  resort  for 
repose  and  security  to  institutions  which  have  a 
tendency  to  destroy  their  political  rights.  To 
be  more  safe,  they  at  length  become  willing  to 
be  less  free." 2 

§  93.  In  this  view,  the  words  of  this  part  of 
the  Constitution  are  peculiarly  apt  and  well 
chosen,  — "  provide  for  the  common  defence." 

1  Madison,  Federalist,  No.  41.  «  Hamilton,  Ibid,  No.  8. 


THE   COMMON  DEFENCE.  121 

They  include  not  merely  the  making  defence 
when  called  for,  —  all  the  powers,  demands,  and 
appliances  of  actual  war,  when  it  comes,  — 
but  the  providence  necessary  to  anticipate  and 
secure,  in  times  of  profound  peace,  the  appro- 
priate means  for  making  the  defence  effectual 
when  wanted;  —  not  only  collecting  and  pre- 
serving all  kinds  of  warlike  implements,  but 
cultivating  and  securing  the  raw  material  for 
the  same,  above  ground  and  under  ground, — 
the  forest-trees  and  minerals,  together  with  the 
science  necessary  for  nurturing  and  working 
them ;  —  not  only  fostering  and  encouraging  the 
profession  of  soldiers  and  sailors,  but  establish- 
ing and  maintaining  permanent  institutions  of 
learning  and  science  for  disciplining  and  edu- 
cating, in  adequate  numbers,  the  youth  of  the 
land,  for  future  officers  and  men  of  war  by  sea 
and  land. 

§  94.  It  is  not  a  little  singular,  that  this  great 
and  really  unlimited  power  of  national  defence 
should  have  been,  from  the  origin  of  our  govern- 
ment, universally  admitted  in  theory,  and  prac- 
tically used,  so  far  as  the  principle  is  concerned, 
to  the  extent  of  its  whole  length  and  breadth; 
and  yet  that  its  source  in  the  Constitution  has 
never  been  generally  admitted,  if  indeed  it  has 
often  been  sought  or  discovered.  It  has  not  been 
admitted  to  be  in  this  part  of  the  instrument; 
because,  it  is  said,  this  is  only  a  preamble,  and 
can  confer  no  power  itself,  or  even  enlarge  any 


122  THE   COMMON  DEFENCE. 

power  otherwise  conferred,  but  is  essentially 
outside  of  the  Constitution,  and  no  part  of  the 
supreme  law  of  the  land.  It  is  said  also  that 
it  is  not  in  section  8  of  Article  I.,  —  the  only 
other  place  where  the  words  "  provide  for  the 
common  defence  "  occur,  —  because  the  sole  ob- 
ject of  that  clause  is  to  confer  on  Congress  the 
power  of  taxation,  or,  as  some  say,  that  of  taxa- 
tion and  appropriation;  either  of  which  excludes 
from  it  any  more  general  power  of  national 
defence,  than  such  as  may  be  made  by  the  use 
of  a  revenue  derived  from  taxation.  It  cer- 
tainly is  not  in  any  other  clause;  for  the  same 
words,  or  any  others  of  equivalent  signification, 
are  nowhere  else  to  be  found  in  the  instrument. 

§  95.  Alexander  Hamilton  says  the  common 
defence  is  one  of  "  the  principal  purposes  to  be 
answered  by  union ; "  and  James  Madison  says, 
"  it  is  an  avowed  and  essential  object  of  the 
American  Union."  *  The  idea  seems  to  be 
taken  directly  from  this  first  sentence  of  the 
Constitution;  for  it  is  here  expressed  precisely, 
and  not  at  all  in  any  other  part.  Yet  these 
writers  do  not  expressly  refer  to  it  as  the  origin 
of  this  or  any  other  power  of  the  government, 
or  as  imposing  on  them  the  duty  of  executing 
it.  The  Constitution  had  never  been  objected 
to  on  this  ground;  and  it  was  no  part  of  their 
duty,,  as  advocates  of  its  adoption,  to  enlarge 
the  field  of  operation  for  the  objectors.  They 

1  Federalist,  Nos.  23,  41. 


THE   COMMON  DEFENCE.  123 

both  agree  that  the  power  must  be  unlimited  in 
its  extent,  though  they  do  not  appear  to  con- 
template it  as  embracing  particulars  in  addition 
to,  and  differing  in  nature  and  character  from, 
those  specifically  mentioned  and  assigned,  out 
of  the  general  powers  of  the  government,  to 
the  legislative  department.  Hamilton  says, 
:?  The  authorities  essential  to  the  care  of  the 
common  defence  are  these:  To  raise  armies; 
build  and  equip  fleets;  prescribe  rules  for  the 
government  of  both;  to  direct  their  operations; 
to  provide  for  their  support."  Madison  says, 
"  They  are  those  of  declaring  war,  and  granting 
letters  of  -marque  ;  of  providing  armies  and 
fleets  ;  of  regulating  and  calling  forth  the 
militia ;  of  levying  and  borrowing  money." 
These  are  all  specified  powers  of  different  de- 
partments, either  the  legislative  or  executive,  to 
whom  they  are  distributed  by  the  Constitution; 
but  they  fall  far  short  of  embracing  the  whole 
curriculum  necessary  to  enable  the  government 
to  accomplish  their  great  and  comprehensive 
duty,  as  here  prescribed,  "  to  provide  for  the 
common  defence." 

§  96.  They  may  be  sufficient  to  enable  them 
to  carry  on  war  when  it  actually  comes,  as  it 
may,  with  or  without  being  declared.  But  how 
do  they  get  the  providential  power  to  do  many 
other  and  more  important  things,  by  way  of 
preparation,  to  render  these  effectual?  To  build, 
stock,  furnish,  man,  and  maintain  fortresses, 


124  THE  COMMON  DEFENCE. 

magazines,  armories,  arsenals,  dock-yards,  ship- 
yards, founderies,  manufactories,  and  machinery 
for  the  fabrication  of  all  kinds  of  warlike  imple- 
ments; military  roads,  ships  of  war,  and  ship- 
canals  ;  working  mines,  growing  ship-timber,  and 
raising  hemp?  All  this  and  much  more  when 
there  is  no  war,  nor  prospect  of  any?  To  en- 
courage sailors  by  bounties,  and  give  education, 
in  all  the  sciences  and  mysteries  of  war,  to  young 
men  fitting  for  the  military  or  naval  service  of 
the  country?  All  these  powers,  to  a  greater  or 
less  extent,  the  government  have  been  using 
ever  since  it  was  established;  and  must  continue 
to  use,  or  give  up  their  chief  duty  of  providing 
for  the  common  defence.  And  yet  they  are 
none  of  them  specified  in  any  list  of  the  parti- 
cular duties  of  any  department. 

§  97.  They  are  included  in  the  general  duty 
and  power  of  the  government  "  to  provide  for 
the  common  defence ; "  and,  so  far  as  they  are 
legislative,  they  devolve  directly  on  Congress, 
as  the  depository  of  all  the  legislative  power 
of  the  government,  and  also  by  the  special 
authority  to  make  all  laws  necessary  and  pro- 
per for  carrying  into  execution  all  the  powers 
vested  in  the  government  of  the  United  States.1 

1  In  Gibbons  v.  Ogden,  9  Wheat.  R.,  Chief  Justice  Marshall,  speak- 
ing for  the  Court,  says,  "  The  powers  given,  as  fairly  understood,  render 
it  [the  government]  competent  ...  to  the  objects  for  which  it  is  declared 
to  be  instituted."  This  refers  directly  to  the  objects  mentioned  in  the 
enacting  clause,  and  pronounces  the  powers  of  the  government  adequate 
to  the  accomplishment  of  them  all. 


THE  COMMON  DEFENCE.  125 

"When  the  people  say  they  ordain  this  govern- 
ment on  purpose  K  to  provide  for  the  common 
defence,"  to  assert  that  they  confer  no  power 
for  the  purpose  is  an  attempt  not  only  to  can- 
cel this  part  of  the  Constitution,  but  absolutely 
to  stultify  the  nation.  That  a  Constitution 
instituting  a  national  government  could  have 
been  made  expressly  for  six  great  national  and 
specific  purposes,  and  yet  include  or  imply  no 
duty  or  authority  to  efiect  either  of  them,  is 
too  absurd  for  belief  without  proof,  and  too 
contradictory  to  be  supported  by  proof.  "  That 
would  be,"  in  the  language  of  Judge  Story,  "  to 
create  a  power  for  a  certain  end,  and  then  deny 
the  end  intended  by  the  power." 


CHAPTEE   IX. 

THE    GENERAL  WELFARE. 

§  98.  THE  fifth  avowed  purpose  of  the  Con- 
stitution was  to  "  promote  the  general  welfare." 
In  the  history  of  the  government,  it  has  not  been 
usual  to  encounter  objections  to  the  Constitu- 
tion, on  the  ground  that  it  was  not  sufficiently 
liberal  in  its  grant  of  powers  to  the  government. 
Of  course  its  friends  have  not  felt  themselves 
called  upon  to  propound  an  elucidation  and 
exposition  of  those  parts  of  it  which  were  most 
likely  to  call  forth  objections  of  the  opposite 
character,  —  already  sufficiently  abundant,  and, 
on  account  of  their  ad  captandum  quality,  rather 
than  their  substantial  weight,  superabundantly 
troublesome.  Such  parts  have  been  much  more 
liable  to  be  passed  over  and  forgotten.  ^N"ot  a 
few  stanch  friends  of  the  Constitution  have,  at 
different  times,  thought  it  expedient  to  repu- 
diate and  abjure  their  true  and  obvious  mean- 
ing, force,  and  validity;  while  more  have  been 
willing  to  overlook  and  ignore  them;  and  all 
have  actually  united  with  its  adversaries  in 

[126] 


THE  GENERAL  WELFARE.          127 

abstaining  from  the  legitimate  use  and  salutary 
execution  of  them;  till,  in  some  instances,  it  has 
even  been  made  a  question,  whether  the  right 
to  exercise  such  powers  has  not  been  totally  lost 
by  non  user ;  or,  in  other  words,  whether  the 
people  have  not  lost,  through  the  continued 
infidelity  of  their  agents,  —  the  government,  — 
the  right  to  have  their  Constitution  executed 
at  all.  This  question  we  shall  not  stop  to 
discuss.  "Litera  scripta  manet." 

§  99.  In  regard  to  the  words  now  under  con- 
sideration, the  efforts  of  the  opposition  have 
never  been,  as  with  other  parts  of  the  Con- 
stitution, to  tone  down  or  fritter  away  their 
meaning;  but  to  construe  them  out  of  the  Con- 
stitution, and  get  rid  of  them  entirely.  This 
they  have  rightly  considered  the  only  way  of 
avoiding  the  full  drift  of  general  authority  and 
governmental  supremacy  included  in  them.  Mr. 
George  Mason,  however,  one  of  the  most  de- 
cided opponents  of  the  Constitution,  held  that 
this  was  a  substantive  power,  and  "  that  Congress 
should  have  power  to  provide  for  the  general 
welfare  of  the  Union."  Patrick  Henry  seems 
to  have  been  of  the  same  opinion.1  Richard 
Henry  Lee  said  these  terms  seemed  to  him  w  to 
submit  to  Congress  every  object  of  human 
legislation." 2  And  Mr.  Monroe  says,  w  An  un- 
qualified power  to  pay  the  debts,  and  provide 

1  3  Elliot's  Debates,  442,  590. 

2  Letter  to  Samuel  Adams,  Oct.  5,  1787. 


128  THE   GENERAL  WELFARE. 

for  the  common  defence  and  general  welfare, 
.  .  .  would  extend  to  every  object  in  which  the 
public  could  be  interested." l  Mr.  Jefferson 
said  this  w  would  reduce  the  whole  instrument 
to  a  single  phrase,  that  of  instituting  a  Congress, 
with  power  to  do  whatever  would  be  for  the 
good  of  the  United  States ;  and,  as  they  would 
be  the  sole  judges  of  the  good  or  evil,  it  would 
be  a  power  to  do  whatever  evil  they  pleased." 2 
Mr.  Madison  asks,  "  What  is  the  case  that  would 
not  be  embraced  by  a  general  power  to  raise 
money  ;  a  power  to  provide  for  the  general 
welfare;  a  power  to  pass  all  laws  necessary  and 
proper  to  carry  these  powers  into  execution: 
all  such  provisions  and  laws  superseding,  at 
the  same  time,  all  local  laws  and  constitutions 
at  variance  with  them?"3  Mr.  Monroe  says, 
"  A  power  to  provide  for  the  common  defence 
would  give  to  Congress  the  command  of  the 
whole  force  and  all  the  resources  of  the  Union; 
but  a  right  to  provide  for  the  general  welfare 
would  go  much  further,"  —  meaning,  undoubt- 
edly, as  is  true,  that  it  would  go  so  far  as  to 
leave  nothing  beyond,  within  the  scope  of  legiti- 
mate civil  government.4 

§  100.  Mr.  Monroe  adds,  with  great  assurance, 
as  if  determined  to  squelch  the  whole  doctrine, 
by  charging  it  with  the  ne  plus  ultra  of  absur- 

1  Message,  May  4,  1822. 

2  Opinion  on  the  Bank,  Feb.  15,  1791. 

3  Letter  to  Stevenson,  Nov.  27,  1830. 
*  Message  to  Congress,  May  4,  1822. 


THE  GENERAL  WELFARE.          129 

dity,  "  It  would,  in  effect,  break  down  all  the 
barriers  between  the  States  and  the  general 
government."  What  barriers  has  the  Constitu- 
tion of  the  United  States  erected  against  itself  ? 
None,  other  than  those  implied  in  the  duty  of 
the  general  government  to  administer  the  Con- 
stitution, and  execute  the  law,  upon  all  the 
inhabitants  of  the  land,  whether  people  or  States, 
citizens  or  aliens,  individual  or  corporate;  and 
in  the  correlative  duty  of  all  these  to  deport 
themselves  accordingly.  The  Constitution  con- 
fers no  powers  of  government,  and  imposes  no 
duty  to  govern,  on  anybody  but  its  own  agents, 
the  government  of  the  United  States,  which  it 
makes  supreme,  as  well  over  the  States  as  over 
the  people.1  These  gentlemen  are  all  Virgin- 
ians, and  State-rights  politicians ;  and,  all  but 
one,  original  opponents  of  the  Constitution,  and 
he  afterwards  an  inveterate  impugner  of  some 
of  its  most  important  principles.  They  do  not, 
however,  any  of  them  attempt  to  disguise,  or 
in  any  degree  to  obscure,  the  magnitude  and 
importance  of  this  great  power  to  "provide  for 
the  general  welfare." 

§  101.  But  jurists  of  a  more  reliable  political 
character,  and  much  higher  authority,  fully  en- 

1  "  All  legislative  powers  herein  granted  "  —  all  powers  for  making 
laws,  and  declaring  what  the  law  shall  be — "  shall  be  vested  in  a  Congress 
of  the  United  States."  —  Sect.  1. 

"  Resistance  to  constitutional  authority,  by  any  of  the  State  function- 
aries, should  not  be  anticipated ;  but,  if  made,  the  Federal  government 
may  rely  upon  its  own  agency  in  giving  effect  to  the  laws."  —  Per 
McLean,  J.,  16  Peters'  R.  666. 

9 


130  THE   GENERAL  WELFARE. 

dorse  and  confirm  these  views,  so  far  as  respects 
the  extent  of  this  great  power.  Mr.  Madison 
calls  it  "  an  awkward  form  of  describing  an 
authority  to  legislate  in  all  possible  cases;"  ap- 
parently forgetting  that  they  are  the  precise 
words  used  by  Alexander  Hamilton  for  that  ex- 
press purpose,  in  his  original  draft  of  a  constitu- 
tion, as  reported  by  Mr.  Madison  himself.  His 
words  are,  "  The  legislature  of  the  United  States 
shall  have  power  to  pass  all  laws  which  they 
shall  judge  necessary  to  the  common  defence  and 
general  welfare  of  the  Union."  This  was  in- 
tended to  confer  plenary  legislative  power  upon 
Congress  in  all  cases  whatsoever;  which  he  con- 
tended they  ought  to  have,  siibject  only  to  the 
veto  of  the  President,  the  restrictions  of  the 
Constitution,  and  those  imposed  by  the  moral 
law  and  the  essential  objects  of  political  society. 
§  102.  The  foregoing  criticisms  on  the  power 
were  none  of  them  made  with  direct  reference 
to  the  enacting  clause  now  under  consideration; 
for  this  they  consider  to  be  entirely  outside  of 
the  Constitution  not  forming  any  part  of  the 
law  of  the  land.  They  refer  to  the  same  words 
in  the  8th  section  of  the  first  Article,  which,  in 
distributing  the  general  powers  of  the  govern- 
ment among  the  different  departments,  assign 
to  Congress,  in  some  detail,  a  portion  of  those 
intended  to  be  exercised  by  them.  These  will 
be  considered  in  their  proper  place  hereafter. 
But  as  to  the  phrase  now  in  question,  as  it 


THE   GENERAL  WELFAKE.  131 

stands,  unlimited  and  unqualified,  in  this  first 
clause  of  the  Constitution,  there  does  not  appear 
to  be  room  for  a  doubt,  that  w  to  provide  for  the 
common  defence  and  to  promote  the  general 
welfare  "  include  every  thing  that  a  good  gov- 
ernment ought  to  be  called  upon  to  do  for  the 
benefit  of  any  people.  In  the  words  of  Mr. 
Madison,  "  The  common  defence  and  general 
welfare  embrace  every  object  and  act  within  the 
purview  of  a  legislative  trust."1  They  were 
practically  so  understood  by  the  old  Congress 
in  administering  the  confederation,  from  which 
they  were  taken.  Mr.  Madison  says,  in  the 
Federalist,2  "  The  present  [confederation]  Con- 
gress have  as  complete  authority  to  require  of 
the  States  indefinite  supplies  of  money  for  the 
common  defence  and  general  welfare,  as  the 
future  Congress  will  have  to  require  them  of 
individual  citizens." 

§  103.  Mr.  Justice  Story  says3  these  words 
are  "  broad  enough  to  include  all  the  purposes 
contemplated  by  the  Constitution  ; "  referring 
directly  to  this  first  clause  of  the  instrument 
now  under  our  examination.  Mr.  Hamilton4 
says,  "  The  phrase  [general  welfare]  is  as  com- 
prehensive as  any  that  could  have  been  used ; 
because  it  was  not  fit  that  the  constitutional 
authority  of  the  Union  to  appropriate  its  re- 

i  Veto  Message,  March  3,  1817.      2  No.  45. 

3  Commentaries,  vol.  ii.  p.  395.       4  Keport  on  Manufactures  in  1791. 


132          THE  GENERAL  WELFARE. 

venues,  should  have  been  restricted  within 
narrower  limits  than  the  general  welfare;  and 
because  this  necessarily  embraces  a  vast  variety 
of  particulars,  which  are  susceptible  neither  of 
specification  nor  of  definition."  Mr.  Monroe1 
says,  in  almost  the  same  words,  w  More  compre- 
hensive terms  than c  to  pay  the  debts,  and  provide 
for  the  common  defence  and  general  welfare,' 
could  not  have  been  used." 

*  Exposition  of  May  4,  1822. 


CHAPTEE    X. 

• 

SECURITY  OF  LIBERTY. 

§  104.  THE  sixth  and  last  of  the  avowed  pur- 
poses of  the  people  in  the  establishment  of  their 
government,  and  for  the  accomplishment  of 
which  they  of  course  intend  their  government 
shall  be  responsible,  is  "  to  secure  the  blessings 
of  liberty  to  ourselves  and  our  posterity."  Here 
the  last  and  most  valued  of  the  natural  and 
constitutional  rights  of  the  people  is  placed, 
expressly  for  security  and  safety,  directly  under 
the  care  and  guardianship  of  the  government 
of  the  United  States.  The  provision  is  after- 
wards supported  and  assisted  by  an  auxiliary 
Article,  recognizing  the  common-law  right  to 
personal  freedom,  and  perpetuating  the  common- 
law  remedy,  by  habeas  corpus,  against  its  in- 
fringement; and  by  another,  making  a  direct 
and  absolute  prohibition  of  any  deprivation  of 
it,  otherwise  than  by  due  process  of  law.  That, 
in  the  'middle  of  the  third  generation  after  the 
adoption  ofnsuch  a  Constitution  by  the  American 
people,  there  should  have  existed  in  their  midst 

[133] 


134  SECURITY  OF  LIBERTY. 

four  millions  of  people,  partly  of  their  own 
posterity,  mostly  natural-born  citizens  of  the 
United  States,  and  universally  resident  inhabi- 
tants of  the  land,  subject  to  its  government  and 
entitled  to  its  protection ;  yet  forcibly  held  in 
absolute  chattel  slavery,  destitute  of  all  rights, 
natural  or  constitutional,  and  liable  to  be  bought 
and  sold  like  cattle,  —  is  a  mortifying  evidence 
of  the  incompetency  of  written  laws,  and  the 
infidelity  of  human  agencies,  to  counteract  the 
selfishness,  avarice,  and  injustice  of  men. 

§  105.  This  important  object  of  the  people 
has  obviously  failed  of  its  accomplishment,  not 
from  any  defect  in  the  constitutional  power  dele- 
gated, but  from  the  voluntary  abandonment  of 
the  duty  by  the  government  itself.  This  was 
first  done  by  the  first  Congress,  and  repeated 
afterwards  as  often  as  the  subject,  in  any  form, 
came  before  them,  till  the  breaking  out  of  the 
rebellion  in  1860. 

§  106.  Addresses  were  presented  to  the  first 
Congress  from  the  yearly  Quaker  meeting  of 
Pennsylvania,  New  Jersey,  Delaware,  and  west- 
ern parts  of  Maryland  and  Virginia,  and  from 
the  Society  of  Friends  in  New  York, "  against  the 
continuance  of  the  African  slave-trade."  The 
ordinary  motion,  to  send  it  to  the  appropriate 
Committee,  was  resisted  by  the  whole  force  of  the 
slave  interest  in  the  House;  not  onj;he  ground 
that  Congress  had  no  right  to  interjfflre  with  the 
subject,  but  because  it  was  hostile  to  Southern 


SECURITY  OF  LIBERTY.  135 

institutions;  betrayed  "  a  disposition  towards  a 
total  emancipation;"  would  jeopardize  the  tenure 
and  vahie  of  property  in  slaves ;  make  slaves  rest- 
less by  exciting  hopes  of  freedom ;  and  "  will  fur- 
nish just  cause  of  alarm  to  the  Southern  States." 

§  107.  ^n  this  debate  it  was  denied  that  the 
claims  of  morality  or  religion  formed  any  good 
ground  for  Congress  to  act  on  the  subject;  and 
it  was  said  expressly,  "  that  slavery  is  not  only 
allowed,  but  commended,"  in  the  Bible,  and  that 
our  Saviour  in  particular  "  has  allowed  of  it." 
The  next  day,  the  Memorial  of  "  The  Pennsyl- 
vania Society  for  Promoting  the  Abolition  of 
Slavery"  was  presented,  asserting  the  doctrine 
of  the  Declaration  of  Independence,  "  that  equal 
liberty  ...  is  ...  the  birthright  of  all  men;" 
and  praying  that  Congress  "  will  step  to  the  very 
verge  of  the  power  vested  in  you,  for  discourag- 
ing every  species  of  traffic  in  the  persons  of  our 
fellow-men."  —  (Signed),  Benjamin  Franklin, 
President.  This,  and  the  memorials  of  the  pre- 
ceding day,  were  taken  up  together,  and  again 
debated.  Their  commitment  was  opposed  by 
the  same  men,  on  the  same  grounds,  with  an 
additional  unfounded  assertion,  that  some  of 
them  "  contained  an  unconstitutional  request." 

§  108.  In  this  debate  the  advocates  of  the 
commitment  asked  nothing  more  than  a  conside- 
ration of  the  petitions  in  the  ordinary  course  of 
similar  documents,  with  a  view  to  a  fair  appli- 
cation of  such  authority  as  they  might  be  found 


136  SECURITY  OF  LIBERTY. 

rightfully  to  possess  to  the  evil  complained  of. 
Mr.  Thomas  Scott,  of  Pennsylvania,  made  a 
strong  intimation,  that  slavery  itself  was  uncon- 
stitutional. He  said,  "  I  cannot,  for  my  part, 
conceive  how  any  person  can  be  said  to  acquire 
a  property  in  another ; "  and  he  wo.uld  "  sup- 
port every  constitutional  measure  -likely  to  bring 
about  its  total  abolition.  ...  I  do  not  know  how 
far  I  might  go  if  I  was  one  of  the  Judges  of  the 
United  States,  and  those  people  were  to  come 
before  me  and  claim  their  emancipation ;  but  I 
am  sure  I  would  go  as  far  as  I  could."  Mr. 
Madison  said,  "  There  are  a  variety  of  ways  in 
which  Congress  could  countenance  the  abolition ; 
and  regulations  might  be  made  in  relation  to  the 
introduction  of  them  into  the  new  States  to  be 
formed  out  of  the  Western  Territory."  1 

1  It  is  worthy  of  note  that  this  speech  was  made  in  1790,  after  slavery 
had  been  totally  prohibited  in  all  the  territory  north-west  of  the  Ohio, 
and  of  course  must  have  referred  exclusively  to  territory  south  of  that 
river,  viz.,  Kentucky  and  Tennessee,  which  was  the  only  remaining  terri- 
tory we  then  had. 

In  another  debate  in  the  first  Congress,  on  "  Duties  on  Imports,"  and 
on  the  proposition  to  tax  the  importation  of  slaves,  Mr.  Madison  said, 
"  Every  thing  which  tends  to  increase  this  danger  [i.e.,  internal  or  exter- 
nal attack],  though  it  may  be  a  local  affair,  yet  if  it  involves  national 
expense  or  safety,  becomes  a  concern  to  every  part  of  the  Union,  &nd  is  a 
proper  subject  for  the  consideration  of  those  charged  with  the  general 
administration  of  the  government."  —  1  Benton's  Abr.,  75. 

In  this  debate  also  the  exercise  of  the  power  of  taxation  on  the  im- 
portation of  persons,  though  expressly  given  in  section  9,  was  resisted 
with  the  same  acrimony  that  was  always  manifested,  whenever  the  sub- 
ject in  any  form  required  the  consideration  of  Congress.  The  consti- 
tutionality or  unconstitutionality  of  any  measure  on  this  subject  entered 
into  their  contemplation  no  further  than  to  consider  the  use  that  could 
be  made  of  it  in  aid  of  their  resistance,  determined  upon  without  any 
regard  to  either. 


SECURITY  OF  LIBERTY.  137 

§  109.  Mr.  Tucker,  of  South  Carolina,  said, 
"  A  general  emancipation  of  slaves  by  law  .  .  . 
would  never  be  submitted  to  by  the  Southern 
States  without  a  civil  war."  And  Mr.  Jackson, 
of  Georgia,  said  the  subject  was  "  likely  to  light 
up  a  flame  of  civil  discord;  for  the  people  of  the 
Southern  States  will  resist  one  tyranny  as  soon 
as  another.  The  gentleman  says,  if  he  was  a 
Federal  Judge  he  does  not  know  to  what  length 
he  would  go  in  emancipating  these  people;  but 
I  believe  his  judgment  would  be  of  short  dura- 
tion in  Georgia.  Perhaps  even  the  existence 
of  such  a  Judge  might  be  in  danger."  All  the 
opponents  of  the  motion  represented  the  intro- 
duction of  the  subject  as  an  attack  on  the 
South  ;  "  on  the  palladium  of  their  property ;  " 
on  their  character,  their  morals,  their  humanity, 
their  "  religion  and  piety."  All  the  pernicious 
effects  attributed  to  it  were  charged  to  the  in- 
terference of  Congress  ;  to  their  taking  any 
cognizance  of  the  subject ;  to  their  using  or 
exercising  any  of  their  admitted  constitutional 
rights  having  any  relation  to  it ;  or  even  to 
their  inquiring  whether  they  had  any  such  rights, 
or  what  they  were,  —  and  not  to  any  thing  ob- 
jectionable in  the  character  of  any  measure  it 
might  be  proposed  to  adopt.  They  therefore 
put  themselves  on  the  defensive,  and  resisted 
every  attempt,  in  any  form,  to  take  any  cogni- 
zance of  the  petitions,  even  for  the  purpose  of 
inquiring  into  the  nature  of  their  own  rights 


138  SECURITY  OF  LIBERTY. 

and  duties.  Whatever  these  might  be,  they 
were  determined  none  should  be  exercised,  if  by 
any  means  they  could  prevent  it.  Nevertheless 
the  vote  passed  "to  commit,"  by  forty-three  to 
eleven,  which  was  probably  about  the  proportion 
of  those  who  were  originally  willing  to  consider 
and  do  what  might  be  found  proper,  to  those 
who  were  from  the  beginning  determined  that 
slavery  should  not  be  meddled  with  at  any  rate. 

§  110.  The  Committee,  which,  with  the  excep- 
tion of  one  Virginian,  was  composed  entirely  of 
Northern  members,  made  a  report,  worse  than 
nothing  for  any  national  purpose,  which  came 
up,  in  a  few  weeks,  for  discussion  in  Committee 
of  the  Whole.  The  subject  was  again  debated,  in 
the  same  temper  as  before;  and  the  resolutions 
of  the  Committee,  after  being  razeed  substan- 
tially to  a  simple  disclaimer  of  any  "  authority 
to  interfere  in  the  emancipation  of  slaves  or  in 
the  treatment  of  them  in  any  of  the  States," 
were  reported,  with  the  amendments,  to  the 
House,  and  there  taken  up  for  final  disposition 
by  a  majority  of  one  vote;  where,  by  a  majority 
of  four  votes,  they  were  ordered  to  be  entered 
on  the  Journal,  but  were  never  afterwards  called 
up  or  otherwise  acted  upon.  The  slaveholders 
voted  against  the  whole  proceedings  throughout, 
though  the  purport  of  them  was  to  yield  the 
whole  subject  to  their  own  control.  Many 
Northern  members  voted  with  them,  in  the 
negative;  either  because  they  chose  to  yield  to 


SECURITY  OF  LIBERTY.  139 

Southern  clamor,  or  because  they  thought  the 
proposition  worse  than  nothing.  So  that  in 
the  same  House  where,  a  few  days  before,  there 
was  a  majority  of  thirty-two,  or  about  four- 
fifths  of  the  whole  number,  in  favor  of  appro- 
priate action,  there  was  now  but  a  bare  majority 
in  favor  of  allowing  the  Journal  to  show  that 
the  subject  had  been  before  them,  and  that  they 
did  nothing.  But  the  maxim,  Ex  nihilo  niliil  fit, 
was  not  sustained.  Colonel  Benton,  from  whose 
w  Abridgment  of  the  Debates "  this  account 
has  been  extracted,  remarks  sagaciously  at  the 
close,  "These  proceedings  put  an  end  to  aboli- 
tion petitions  in  Congress."  And  well  they 
might. 

§  111.  In  the  next  (second)  Congress,  how- 
ever, the  subject  came  again  before  them,  on  the 
petition  of  Warner  Mifflin,  which  was  voted  "  to 
be  returned  to  him."  Mr.  Ames,  who  presented 
it,  said,  "  It  was  his  opinion,  which  he  had  ex- 
pressed to  the  House  long  ago,  that  this  govern- 
ment could  not  with  propriety  take  any  steps  in 
the  matter  referred  to  in  this  petition.  .  .  .  He 
considered  it  totally  inexpedient  to  interfere  with 
tlpe  subject."  Mr.  S.  Livermore  did  not  "  believe 
there  was  any  disposition  to  bring  it  forward." 
In  the  great  debate  of  1830,  Mr.  Webster  said, 
that,  after  the  above-mentioned  proceedings  of 
the  first  Congress,  it  had  "  never  been  main- 
tained or  contended  at  the  North,  that  Congress 
had  any  authority  to  regulate  or  interfere  with 


140  SECURITY  OF  LIBERTY. 

the  condition  of  slaves  in  the  several  States. 
!Nb  Northern  gentleman,  to  my  knowledge,  has 
moved  any  such  question  in  either  House  of 
Congress." 

§  112.  This  abandonment  was  carried  so  far, 
that,  at  the  close  of  the  session  of  1860-61,  after 
most  of  the  Southern  States  had-  passed  their 
ordinances  of  secession,  and  met  in  convention 
to  organize  their  Confederacy,  leaving  Congress 
with  a  large  majority  of  Republicans  and  friends 
of  the  incoming  Administration,  the  House  of 
Representatives  passed,  by  a  unanimous  vote, 
the  following  declaratory  Resolution :  — 

"  Resolved^  That  neither  the  Federal  govern- 
ment nor  .the  people,  or  the  governments,  of 
the  non-slaveholding  States,  have  the  right  to 
legislate  upon  or  interfere  with  slavery  in  any 
of  the  slaveholding  States  in  the  Union."  And 
the  two  Houses,  by  more  than  a  two-thirds  vote 
of  each,  proposed  to  make  the  abandonment 
perpetual  by  the  following  addition  to  the  Con- 
stitution :  — 

"  No  amendment  shall  be  made  to  the  Consti- 
tution, which  will  authorize  or  give  to  Congress 
the  power  to  abolish  or  interfere,  within  any 
State,  with  the  domestic  institutions  thereof,  in- 
cluding that  of  persons  held  to  labor  or  service 
by  the  laws  of  said  State." 

Afterwards  President  Lincoln,  in  his  inau- 
gural address,  volunteered  his  approval  of  the 
proposition. 


SECURITY  OF  LIBERTY.  141 

§  113.  The  subject  was  discussed,  in  some 
aspect  of  it,  not  less  than  six  times  during 
Washington's  Administration,  and  as  often  or 
oftener  in  the  subsequent  Administrations,  — 
always  in  the  same  arrogant,  aggressive,  and 
threatening  temper  on  the  part  of  the  South, 
and  in  the  same  yielding,  compliant,  and  apolo- 
getic style  on  the  part  of  the  North,  till  Mr. 
Calhoun  announced  the  determination  to  force 
the  North  to  an  issue.1  As  the  government  was 
substantially  in  the  hands  of  the  South,  those 
Northern  men  who  modestly  wished  to  stand 
well  with  the  powers  that  be,  endeavored  as  far 
as  possible  to  place  their  disposition  to  leave 
the  subject  in  the  hands  of  the  State  govern- 
ments, on  the  ground  of  political  expediency; 
while  the  more  ambitious  aspirants  for  Southern 
favor  have  not  hesitated  to  assert,  that  "  Con- 
gress has  no  right  to  interfere  with  slavery  in 
any  State, "  —  really,  that  the  slavery  or  freedom 
of  the  citizens  of  the  United  States  must  be 
settled  by  State  laws,  and  that  the  government 
or  Constitution  of  the  United  States  had  no 
rights  or  duties  on  the  subject;  thus  abrogating 
or  repealing  the  whole  Constitution,  so  far  as  it 
relates  to  "  securing  the  blessings  of  liberty." 

§  114.  Before  1860,  this  sentiment  had  come 
to  be  considered  and  admitted  as  binding  on 
the  politicians  as  if  it  had  actually  made  a  part 

1  See  Benton's  Thirty-years'  View,  and  his  Examination  of  the  Dred- 
Scot  Case. 


142  SECURITY  OF  LIBERTY. 

of  the  Constitution.  Congress  had  repealed  all 
the  prohibitions  against  carrying  slavery  into 
any  of  the  Territories  of  the  United  States, 
and  establishing  and  sustaining  it  there  ;  and 
the  Supreme  Court  had  decided,  in  the  Dred- 
Scot  Case,  that  any  citizen  had  a  constitutional 
right  to  do  so,  and  neither  Congress  nor  any 
body  else  had  any  power  to  prevent  it.  The 
same  principle  was  equally  applicable  to  the 
States.  At  this  stage  of  their  progress,  when 
there  seemed  to  be  nothing  left  for  the  slave- 
mongers  to  demand,  the  people  saw  fit  to  elect 
a  new  chief  magistrate,  who,  in  relation  to  the 
rights  of  the  government  over  the  Territories, 
entertained  some  opinions  at  variance  with  the 
recent  practice  of  Congress,  and  the  more  recent 
decision  of  the  Supreme  Court;  and  thereupon 
the  whole  South  rushed  directly  into  rebellion, 
notwithstanding  they  controlled  large  majorities 
in  both  Houses  of  Congress,  »to  prevent  any 
legislation  adverse  to  their  wishes. 

§  115.  The  new  Administration  also,  including 
the  President  and  leading  members  of  Congress, 
after  the  abdication  of  the  Southern  members, 
and  during  the  principal  part  of  the  war,  held 
steadfastly  to  the  same  dogma  of  State  rights 
over  slavery.1  That  it  was  well  understood,  at 
its  original  introduction,  to  have  no  foundation 
in  the  Constitution,  is  manifest  from  the  facts, 
that  congressional  action  on  the  subject  was  not 

1  See  Raymond's  Life  of  President  Lincoln,  p.  240. 


SECURITY  OF  LIBERTY.  143 

resisted  on  constitutional  ground,  and  was  sus- 
tained by  a  vote  of  almost  five  to  one,  against 
such  specious  objections  as  an  interested  min- 
ority could  invent.  It  seems  to  have  been 
resorted  to  only  as  an  expedient  to  cover  up  the 
abandonment  of  moral  principle  to  appease  an 
unjust  claim;  which  claim  itself  constantly  in- 
creased in  force,  by  indulgence,  till  it  Was  thought 
strong  enough  to  refuse  all  compromise  and 
overturn  the  Constitution,  and  thereby  save  the 
trouble  of  overruling  it.  The  dogma  never  was 
sustained  by  any  valid  argument  as  a  constitu- 
tional doctrine,  but  only  by  personal  and  party 
pledges,  exacted  and  enforced,  on  political 
grounds,  by  the  overwhelming  influence  of  the 
slaveholding  interest  in  the  country. 

§  116.  But  the  power  of  the  general  govern- 
ment to  "  establish  justice  .  .  .  and  secure  the 
blessings  of  liberty  "  to  all  the  people  and  their 
posterity,  though  so  long  abandoned  and  even 
disclaimed,  is  still  in  the  Constitution,  and  is  as 
important  to  be  asserted  and  enforced  as  it  was 
originally  to  be  incorporated  there.  It  is  true 
the  State  governments  may  do  this;  and  it  is 
also  true  that  they  may  not  do  it.  It  is  equally 
true,  that  it  may  be  done  without  the  action  of 
any  government.  But  in  neither  case  is  the 
right  or  duty  of  the  general  government  dimin- 
ished or  affected. 

§  117.  Mr.  Madison  says,1  "  The  powers  re- 

1  Federalist,  No.  45. 


144  SECURITY   OF  LIBERTY. 

served  to  the  several  States  will  extend  to  all 
the  objects  which,  in  the  ordinary  course  of 
affairs,  concern  the  lives,  liberties,  and  proper- 
ties of  the  people,  and  the  internal  order,  im- 
provement, and  prosperity  of  the  State."  Mr. 
Hamilton l  speaks  of  "  the  ordinary  administra- 
tion of  criminal  and  civil  justice  "  as  w  belonging 
to  the  province  of  the  State  governments."  Mr. 
Jefferson2  says,  "  The  States  individually  have 
the  principal  care  of  our  persons,  our  property, 
and  our  reputations,  constituting  the  great  field 
of  human  concerns."  Chancellor  Kent  says,3 
"  The  vast  field  of  property,  the  very  extensive 
head  of  equity  jurisdiction,  and  the  principal 
rights  and  duties  which  flow  from  our  civil  and 
domestic  relations,  fall  within  the  control,  and 
we  might  almost  say  the  exclusive  cognizance, 
of  the  State  governments."  And  Judge  Story 
says,4  "  They  [State  governments]  possess  the 
immediate  administration  of  justice  in  all  cases, 
civil  and  criminal,  which  concern  the  property, 
personal  rights,  and  peaceful  pursuits  of  our 
citizens.  They  have  a  full  superintendence  and 
control  over  the  immense  mass  of  local  interests 
of  their  respective  States." 

§  118.  By  none  of  this,  however,  do  they,  or 
any  of  them,  mean  that  the  general  government 
have  nothing  to  do  with  these  subjects,  or  that 
they  are  delegated  by  the  Constitution  to  the 

1  Federalist,  No.  17.  2  First  Message  to  Congress  in  1801. 

8  1  Com.  418.  «  1  Com.  488. 


SECURITY  OF  LIBERTY.  145 

States ;  but  simply  that  they  are  not  withdrawn 
from  State  jurisdiction,  or  prohibited  by  the 
Constitution  to  the  action  of  the  State  govern- 
ments. They  consequently  remain  where  they 
were,  and,  "  in  the  ordinary  course  of  affairs," 
may  continue  so.  Powers  delegated  to  the  gen- 
eral government,  if  not  expressly  or  irnpliedly 
prohibited  to  the  States,  may  be  used  by  them 
when  not  used  by  the  United  States,  on  the 
same  principle  that  individuals  may  do  as  they 
please  in  any  matter  not  contrary  to  law.  The 
States  are  recognized  as  governments,  and,  when 
their  own  constitutions  permit,  may  do  as  they 
please;  provided  they  do  not  interfere  with  the 
Constitution  and  laws  of  the  United  States,  or 
with  the  civil  or  natural  rights  of  the  people 
recognized  thereby,  and  held  hi  conformity  to 
them.  The  right  of  every  person  to  "  life,  lib- 
erty, and  property,"  to  "  keep  and  bear  arms,"  to 
the  " writ  of  habeas  corpus"  to  w trial  by  jury," 
and  divers  others,  are  recognized  by,  and  held 
under,  .the  Constitution  of  the  United  States,  and 
cannot  be  infringed  by  individuals  or  States,  or 
even  by  the  government  itself. 

§  119.  It  is  not  claimed  that  the  State  gov- 
ernments have  any  inherent,  exclusive  right, 
or  constitutional  grant  of  power,  on  any  of 
these  subjects.  The  Constitution  of  the  United 
States  grants  them  nothing.1  The  people  of  the 

i  "  The  Constitution  does  not  grant  to  the  States  the  power  of  passing 
bankrupt  laws,  or  any  other  power." ..."  When  the  American  people 

10 


146  SECURITY  OF  LIBERTY. 

separate  States  grant  them  all  the  legislative 
power  they  have  to  grant;  but  of  course  nothing 
inconsistent  or  incompatible  with  what  they  had 
before,  in  common  with  the  rest  of  the  people 
of  the  United  States,  delegated  to  the  general 
government;  for  the  very  obvious  reason,  that  it 
was  already  given  away,  and  was  no  longer 
theirs  to  bestow.  What  the  Constitution  ex- 
pressly prohibits  to  the  States,  or  what  it  im- 
pliedly  prohibits,  by  an  exclusive  grant  to  the 
United  States,  or  otherwise,  the  State  -govern- 
ments cannot  do.  But  what  is  prohibited  to 
them  only  by  means  of  the  supremacy  of  the 
acts  of  the  general  government,  they  may  do 
when  there  are  no  such  acts  applicable  to  the 
subject;  on  the  universal  principle,  that  all  things 
are  lawful  which  violate  or  infringe  no  law. 

§  120.  The  Constitution  seems,  in  terms,  to 
make  all  its  powers  exclusive,  by  reserving1 
neither  to  the  States  nor  to  the  people  any  thing 
which  is  delegated  to  the  United  States.  What 
is  given  away,  delegated,  is  not  reserved.;  and 
of  course  cannot  be  used,  re-granted,  or  dele- 
gated to  any  body  else.  This  would  prohibit 
the  States  from  doing  any  thing  that  the  general 
government  is  authorized  to  do.  Strict  con- 
created  a  national  legislature,  with  certain  enumerated  powers,  it  was 
neither  necessary  nor  proper  to  define  the  powers  retained  by  the  States. 
These  powers  remained  as  they  were  before  the  adoption  of  the  Consti- 
tution, except  so  far  as  they  may  be  abridged  by  that  instrument."  —  Per 
Marshall,  C.  J.,  in  Sturgis  v.  Crowningshield,  4  Wheat.  R. 

1  See  10th  Amendment. 


SECURITY  OF  LIBERTY.  147 

structionists,  if  true  to  their  own  principles, 
would  hold  to  this  steadfastly,  which  would 
surely  shut  up  the  State  governments  to  very 
narrow  limits  indeed.  But  the  judicial  construc- 
tion has  been  much  mor%  liberal;  and  where  a 
subject  is  distinctly  assigned  to  the  general 
government,  yet  if  they  neglect  to  regulate  it, 
the  State  governments  may  do  so,  and  their  acts 
are  valid.1 

§  121.  On  any  just  principles  of  reasoning,  it 
is  impossible  to  consider  the  general  government 
unauthorized  to  do  any  thing  that  the  people 
assert  they  made  it  on  purpose  to  do.  When 
they  say  that  they  made  it  on  purpose,  w  in 
order "  to  accomplish  certain  specified  objects, 
those  objects  are  ipso  facto  submitted  to  its 
jurisdiction,  and  may  be  accomplished  by  any 
means  under  its  control;  and  not  only  all  speci- 
fied powers,  but  all  other  necessary  means,  are 
expressly  placed  at  its  control,  for  the  very  pur- 
pose of  executing  the  jurisdiction  so  vested  in 
it.  When  the  Constitution  requires  an  end,  it 
authorizes  all  the  means  of  the  government  to 
be  applied  to  it;  and,  when  it  directs  means,  it 
authorizes  their  application  to  any  constitutional 
end. 

§  122.  The  general  government,  then,  are  re- 
quired by  the  people,  and  actually  bound,  "  to 
form  a  more  perfect  Union,  establish  justice, 

1  Sturgis  v.  Crowningshield,  4  Wheat.  Rep. ;  and  Ogden  v.  Saunders, 
12  Wheat.  Rep. 


148  SECURITY  OF  LIBERTY. 

insure  domestic  tranquillity,  provide  for  the  com- 
mon defence,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  ourselves  [all 
the  people]  and  our  posterity."  These  are  the 
powers  vested,  and  all  the  powers  originally 
vested,  in  the  whole  government  generally ;  in 
distinction  from  those  specially  assigned  in  de- 
tail to  the  several  departments  and  officers  of 
the  government,  on  the  division  and  distribution 
of  the  general  powers  among  them.  Such  is 
the  purport  and  effect  of  this  first  part  or 
enacting  clause  of  the  Constitution.  The  sub- 
sequent Articles  and  sections  proceed  to  arrange 
the  organization  of  the  government,  with  its 
different  departments  and  officers;  and  to  distri- 
bute among  them  such  portions  of  those  general 
powers  as  appropriately  fall  to  the  share  of 
each,  together  with  such  further  additions,  regu- 
lations, qualifications,  and  restrictions,  as  were 
thought  appropriate  to  the  great  purposes  and 
objects  of  a  firm  national  government,  adequate 
to  the  exigencies  of  government  and  the  preser- 
vation of  the  Union. 


CHAPTEK    XI. 

THE  ORGANIZATION. 

§  123.  WE  have  seen,  that  the  people  of  the 
United  States,  in  accordance  with  the  resolution 
of  the  Confederation  Congress  by  which  the 
Convention  was  assembled,  by  ordaining  and 
establishing  this  Constitution,  have  formed  and 
instituted  a  "  Firm  ]STational  Government,"  which 
it  calls  the  w  Government  of  the  United  States," 
"  in  order  "  to  accomplish  the  six  great  purposes 
announced  in  the  ordaining  or  enacting  clause; 
and  which  render  the  government  w  adequate  " 
not  only  to  "  the  preservation  of  the  Union," 
but  also  to  all  the  :<J  exigencies  of  govern- 
ment." Its  duty  is  to  execute  the  Constitution, 
and  its  powers  are  commensurate  with  the  duty. 
Th.is  government  is  divided  into  three  depart- 
ments, the  Legislative,  Executive,  and  Judicial; 
and  the  first  three  Articles  next  following  the 
enacting  clause  disclose  the  mode  of  organizing 
each  of  these  departments,  and  describe  in  gene- 
ral terms,  and  by  reference  to  many  examples, 
that  portion  of  the  whole  duty  of  such  a  govern- 

[149] 


150  THE  LEGISLATIVE  DEPARTMENT. 

merit,  which  falls  appropriately  to  each  of  those 
departments. 

THE  LEGISLATIVE  DEPARTMENT. 

§  124.  The  legislative  department  is  organized 
in  two  branches,  called  the  Senate  and  House 
of  Representatives,  and  named  the  "  Congress 
of  the  United  States." *  The  House  of  Repre- 
sentatives2 is  composed  of  members  chosen  every 
second  year  by  the  people  of  the  several  States. 
The  people  of  the  several  States  are  that  por- 
tion of  the  citizens  of  the  United  States  who 
are  the  resident  inhabitants  of  particular  States. 
These  constitute  the  body  represented,  and  from 
among  whom  the  Representative  must  be  select- 
ed; but  though  the  Representative  is  said  to  be 
w  chosen  by  the  people,"  yet  all  the  people  are 
not  necessarily  and  under  all  circumstances 
actual  electors.  Electors  may  be  subject  to 
regulations,  and  required  to  have  other  qualifi- 
cations ;  that  is,  to  conform  to  law  in  other 
respects  than  mere  citizenship,  being  of  the 
people,  members  of  the  body  politic.  Though 
all  citizens  are  not  voters  under  all  circum- 
stances, in  all  places,  and  at  all  times,  yet  no 
aliens  or  others  not  citizens  can  be  under  any 
circumstances,  because  by  the  Constitution  the 
Representatives  must  be  chosen  only  by  "  the  peo- 
ple, —  the  citizens ; "  and  who  they  are,  whether 

1  Article  I.,  section  1.  2  Article  I.,  section  2. 


THE  LEGISLATIVE  DEPARTMENT.  151 

by  birth  or  naturalization,  depends  on  the  laws 
of  the  United  States. 

§  125.  The  qualifications  of  electors  of  Repre- 
sentatives, other  than  habitancy  and  citizenship, 
may  be  prescribed  by  law;  but  they  must  "have 
the  qualifications  requisite  for  electors  of  the 
most  numerous  branch  of  the  State  legislature." 
This  provision  has  been  claimed  as  absolutely 
conferring  the  power  to  fix  the  qualifications  of 
electors  on  the  State  legislatures.  But  this  is 
obviously  a  misconstruction.  It  neither  grants 
nor  restricts  the  power  to  any  body.  As  it 
stands,  it  would  comport  well,  and  be  perfectly 
consistent,  with  an  addition  giving  the  power 
expressly  to  either  government.  Such  an  addi- 
tion not  being  made,  the  clause  leaves  the  power 
as  it  found  it,  unprovided  for  in  this  place;  and, 
if  not  provided  for  elsewhere  in  the  Constitution, 
it  remains  with  the  other  "  powers  not  delegated 
.  .  .  nor  prohibited,"  but  w  reserved  to  the  States 
respectively  or  to  the  people."  We  shall  find, 
however,  that  it  is  provided  for  elsewhere.  This 
is  the  plain  and  palpable  effect  of  the  clause  as 
it  here  stands  by  itself  alone;  and  it  is  further 
corroborated  by  the  fact,  that  in  its  original 
form,  as  reported  by  the  Committee  of  Detail, 
it  was  objected  to  by  Mr.  Governeur  Morris  on 
this  precise  ground,  that,  w  as  it  stands,  it  makes 
the  qualifications  of  the  national  legislature 
depend  on  the  will  of  the  States ; "  and  that  the 
revised  draft,  which  altered  it  essentially,  and 


152  THE  LEGISLATIVE  DEPARTMENT. 

probably  on  this  very  account,  so  as  to  read  as 
it  now  does  in  the  Constitution,  was  made  by 
Mr.  Morris  himself.1 

§  126.  The  word  w  requisite  "  has  no  necessary 
relation  to  the  legislative  power  of  the  States, 
any  more  than  to  that  of  Congress.  It  might 
refer  to  either  or  to  neither.  If  the  State  legis- 
latures have  the  exclusive  power  of  deciding 
what  qualifications  are  "requisite"  for  electors  of 
their  "  most  numerous  branch,"  they  may  decide 
that  none  are ;  and  so  open  the  elections  to 
aliens  as  well  as  citizens,  which  would  be  con- 
trary to  the  Constitution.  Or  they  may  decide 
that  their  "  most  numerous  branch  "  shall  be  ap- 
pointed by  the  governor  and  council,  or  by  the 
Senate,  or  by  the  county  courts,  or  otherwise; 
and  so  not  elected  by  the  people  at  all.  Neither 
the  Constitution  nor  any  law  of  the  Union  re- 
quires expressly  that  either  branch  of  a  State 
legislature  shall  be  elected  by  the  people.  But 
it  does  require  that  the  State  government  shall 
be  republican,  and  that  Representatives  to  Con- 
gress shall  be  chosen  by  the  people,  and  inci- 
dentally that  State  Representatives  shall  also ; 
for  otherwise  the  qualifications  of  the  electors 
of  the  two  sets  of  Representatives  would,  in  this 
respect,  be  different;  and  could  not  be  the  same 
or  identical,  as  the  Constitution  is  understood  to 
require.  When  Congress  undertake  to  prescribe 
a  republican  government  to  the  States,  and  of 

1  See  3  Madison  Papers,  and  5  Elliot's  Debates. 


THE  LEGISLATIVE  DEPARTMENT.       "        153 

course  determine  what  is  such  a  government, 
they  will  be  as  likely  to  decide  what  kind  and 
what  portion  of  the  people  shall  participate  in 
the  suffrage,  and  under  what  regulations  and 
restrictions,  as  they  will  to  decide  what  part  of 
the  governmental  officers  shall  be  chosen  by 
popular  election. 

§  127.  If  "  the  most  numerous  branch  of  the 
State  legislature  "  are  not  chosen  by  the  people 
at  all,  or  only  by  a  small  and  privileged  class  of 
them,  what  becomes  of  the  Representatives  to 
Congress,  on  the  theory  that  they  must  be 
chosen  by  the  same  electors  ?  And  what  be- 
comes of  the  republicanism  of  the  Constitution, 
or  even  of  the  existence  of  the  government,  if 
the  States,  or  any  other  party  than  the  govern- 
ment itself,  can  thus  control  or  abrogate  the 
elections  of  the  Representatives  of  the  people? 
It  is  obvious  that  such  a  construction  cannot  be 
the  true  one,  for  with  it  the  government  cannot 
stand.  As  the  Representatives  to  Congress 
must  be  chosen  ^  by  the  people  of  the  .  .  . 
States,"  and  "  the  electors  shall  have  the  qualifi- 
cations "  [all  the  qualifications]  "  requisite  for 
electors  of  the  most  numerous  branch  of  the 
State  legislature  ; "  it  follows  inevitably,  that 
citizenship  and  residence  or  habitancy,  the  two 
ideas  that  constitute  "  people  of  the  State,"  are 
two  of  the  "  qualifications  "  equally  "  requisite  " 
for  both  sets  of  electors,  by  the  Constitution 
itself,  without  and  independent  of  any  regula- 


154  THE  LEGISLATIVE  DEPARTMENT. 

tion  by  either  government.  The  only  question, 
therefore,  is  regarding  other  qualifications  than 
habitancy  and  citizenship.  "Whatever  these  may 
be,  it  is  evident  they  cannot  enlarge  the  list,  or 
include  any  who  have  not  those  two  qualifica- 
tions. It  then  results  that  the  additional  quali- 
fications are  only  restrictions  on  the  rights  of 
resident  citizens;  and  the  true  inquiry  is,  what 
restrictions  may  be  constitutionally  imposed  by 
any  body?  or,  in  other  words,  what  kind  and 
what  portion  of  the  "  people  of  the  State  "  may 
be  excluded  from  the  suffrage? 

§  128.  This  question  looks  directly  to  the 
republicanism  of  the  State,  and  is  expressly 
delegated  to  the  general  government.  If  the 
general  government  do  not  define  it  or  prescribe 
the  rule,  and  so  long  as  they  do  not;,  no  doubt 
the  State  governments  may,  in  the  same  manner 
and  by  the  same  right  that  they  do  other  things 
not  inconsistent  with  the  Constitution  and  laws 
of  the  United  States;  though  the  power  of 
ultimate  control  is  expressly  delegated  to  the 
general  government.  "This  clause  means  that 
the  States  shall  determine  [in  the  first  instance], 
not  who  shall  vote,  but  when,  how,  and  where 
the  electors  shall  vote;  and  that  they  may  deter- 
mine the  time,  place,  and  manner  in  which  they 
shall  vote,  and  impose  restrictions  [regulations], 
not  disfranchisement." 1  And  even  this  Con- 
gress may  overrule. 

1  Senator  Yates's  speech  in  the  Senate,  Feb.  19, 1866,  on  section  4. 


THE  LEGISLATIVE  DEPAETMENT.  155 

§  129.  The  citizen,  though  his  right  as  such 
cannot  be  denied  except  on  forfeiture,  is  yet 
bound,  in  the  exercise  of  this  as  of  all  other 
rights,  to  conform  to  such  regulations  and  qua- 
lifications of  his  right  as  the  purity  of  the 
elections,  and  their  adaptation  to  effect  their 
legitimate  purposes  in  the  administration  of  the 
government,  may  be  judged  by  the  law-making 
power  to  require.  He  cannot  vote  when,  where, 
and  for  what  officers  he  pleases,  but  must  con- 
form to  the  law.  So  in  regard  to  preliminary 
residence,  registration,  capacity  to  understand 
and  perform  the  duty,  &c.,  he  must  conform  to 
the  law.  How  far  such  regulations  may  go,  so 
as  substantially  not  to  derogate  from  the  con- 
stitutional right  of  suffrage  as  a  citizen,  is  not 
susceptible  of  exact  definition.  But  the  line, 
wherever  it  is  found,  may  not  be  passed.  If 
any  imbecile  portion  of  the  people  are  thus 
debarred,  by  the  laws  of  nature,  from  exercising 
the  right  personally,  they  may  receive  the  bene- 
fit of  its  exercise  through  the  guardianship  of 
their  imbecility  which  the  same  laws  of  nature 
have  provided.  Whatever  regulations  of  this  or 
any  other  kind  may  constitutionally  be  adopted, 
by  State  legislatures  or  otherwise,  are,  by  Article 
I.,  section  4,  under  the  control  of  Congress.  If 
a  State  government  may  disfranchise  a  citizen 
because  he  is  black,  or  for  any  other  cause,  they 
may  because  he  is  an  officer,  agent,  soldier,  or 
servant,  in  the  pay  and  employment  of  the 


156  THE  LEGISLATIVE   DEPARTMENT. 

United  States;  or  even  because  *he  is  loyal  and 
under  oath  to  support  the  Constitution :  and  thus 
banish  the  government,  and  every  department 
and  officer  thereof,  out  of  their  jurisdiction. 

§  130.  The  qualifications  of  Representatives 
are  actual  residence,  seven  years  of  citizenship, 
and  twenty-five  years  of  age.  Every  State  shall 
have  at  least  one  Representative ;  and  the 
others  shall  be  apportioned  among  the  States, 
according  to  numbers,  counting  every  freeman, 
except  Indians  not  taxed,  and  three-fifths  of  all 
others.  But  the  whole  representation  shall  not 
exceed  one  for  every  thirty  thousand;  and  the 
enumeration  shall  be  made  every  ten  years. 
"When  vacancies  happen  in  the  representation  of 
any  State,  the  executive  authority  thereof  shall 
issue  writs  of  election  to  fill  such  vacancies. 

§  131.  There  is  an  ambiguity  in  the  mode  of 
apportionment  of  Representatives,  arising  from 
the  uncertainty  of  the  meaning  of  the  word  free, 
or  free  persons.  It  may  be  the  correlative  of 
alien,  slave,  or  bond.  At  the  time  of  our  Revolu- 
tion, and  afterwards,  it  was  usual  to  enfranchise 
citizens,  members  of  the  body  politic,  by  legal 
forms,  involving  a  record,  an  oath,  or  other 
formalities;  whereby  individuals  were  admitted 
members,  constituted  freemen,  and  entitled  to 
all  the  rights  of  citizenship.  In  this  way  persons 
were  said  to  be  free  of  a  city,  State,  or  corpo- 
ration, —  to  be  freemen,  or  to  have  the  freedom 
thereof;  meaning  that  they  had  a  right  to  the 


THE  LEGISLATIVE  DEPARTMENT.  157 

franchise  of  membership  or  citizenship.-  Such 
persons  were  called  free,  or  freemen,  in  distinc- 
tion from  outsiders,  aliens  or  others,  who  were 
destitute  of  the  franchise.  Others  were  called 
free  in  contradistinction  from  slaves,  who  were 
held  as  property,  mere  chattels,  having  no 
rights,  personal  or  political.  In  this  sense  it 
included  everybody  who  had  rights  of  any  sort, 
or  were  not  slaves.  Another  use  of  the  word  is 
in  opposition  to  bond.  Persons  are  said  to  be 
bond  or  free,  in  reference  to  some  kind  of  legal 
obligation  by  which  some  are  held,  and  from 
which  others  are  free.  In  this  sense  free  per- 
sons would  mean  those  who  were  under  no  legal 
Ixmd  or  obligation  to  anybody,  in  distinction 
from  those  who  were  so  bound. 

§  132.  In  this  place  it  is  of  no  consequence 
what  is  the  meaning  of  the  word  free,  only  as  it 
settles  the  dividing  line  between  that  portion  of 
the  citizens  —  "  people  of  the  several  States  "  — 
who  are  to  be  counted  as  units,  and  that  other 
portion  who  are  to  be  counted  as  fractions.  In 
some  other  respects,  it  may  have  more  impor- 
tance. It  will  be  observed  that  they  are  all 
citizens,  —  people  of  the  several  States,"  —  how- 
ever counted;  because  they  are  the  only  persons 
represented,  by  whom  the  Representatives  are 
chosen,  and  according  to  whose  numbers  the 
Representatives  are  apportioned ;  and  no  others 
could  be  counted  at  all.  It '  ought  to  be  re- 
marked, however,  that  in  practice  this  principle 


158  THE  LEGISLATIVE  DEPARTMENT. 

has  not  been  observed.  The  census  or  decennial 
enumeration  has  always  included  all  the  actual 
inhabitants  of  the  land,  except  w  Indians  not 
taxed,"  whether  aliens  or  slaves  or  both,  without 
any  regard  to  citizenship.  Perhaps  this  is  con- 
sistent with  the  words  of  the  Constitution, 
though  it  is  a  manifest  departure  from  principle, 
and  ought  to  be  corrected  in  practice,  by  mak- 
ing the  law  to  restrict  the  enumeration  to  "  the 
people  [citizens]  of  the  State,"  who  alone  can 
be  represented  in  fact,  according  to  the  first 
section,  and  who  alone  on  republican  principles 
are  entitled  to  be  represented.1  The  census  law, 
therefore,  ought  to  be  so  amended  as  to  take 
the  aliens  in  a  separate  list,  and  exclude  theift 
from  the  enumeration  of  those  on  whose  num- 
bers the  apportionment  of  Representatives  is  to 
be  predicated.  If  the  statute  does  not  direct 
in  this  matter,  it  leaves  it  to  the  preference  of 
the  executive  officers. 

§  133.  Free  persons  and  other  persons  are  all 
persons ;  that  is,  all  "  the  people  of  the  several 
States."  Who  are  rf  the  people,"  the  citizens, 
this  clause  does  not  assist  in  determining.  But 
we  know  from  other  sources,  that  neither  aliens 
nor  slaves  can  be,  till  the  disabilities  of  alienage 
and  slavery  are  removed  by  naturalization  and 
emancipation  respectively,  when  they  are  aliens 
and  slaves  no  longer.  The  law  that  confers  a 
new  status  abolishes  the  disabilities  of  the  old. 

1  An  alien  is  not  an  inhabitant.  —  College  v.  Gove,  5  Pick.  R.  373. 


THE  LEGISLATIVE  DEPARTMENT.  159 

The  law  that  should  incorporate  aliens  and 
slaves  with  citizens,  making  them  and  counting 
them  as  "  people  of  the  several  States,"  would 
confer  a  new  status,  and  thereby  not  only  abolish 
the  disabilities  of  alienage  and  slavery,  but  ex- 
tinguish the  status  which  constitutes  them. 

§  134.  The  franchise  or  right  to  be  a  citizen 
puts  an  end  to  whatever  would  prevent  it.  If, 
therefore,  this  provision  of  the  Constitution 
authorizes  the  counting  those  who  were  aliens 
or  slaves  in  the  class  of  "  all  other  persons,"  it 
thereby  terminates  their  alienage  or  slavery,  and 
transfers  them  directly  to  the  class  of  the  free, 
by  conferring  the  franchise  which  makes  them 
citizens.  But  there  are  decisive  reasons  for  be- 
lieving that  the  w  people  of  the  United  States  " 
intended  no  such  thing  in  regard  to  either.  As 
to  the  disabilities  of  alienage,  they  have  made  an 
express  provision  for  the  method  of  their  re- 
moval, which  of  course  they  could  not  have 
intended  to  render  nugatory  by  abolishing  those 
disabilities  altogether  in  this  sweeping  clause. 
As  to  slaves  or  slavery,  the  Constitution  con- 
tains no  intimation,  admission,  or  recognition 
that  there  was  or  could  be  any  such  class 
under  its  jurisdiction,  but  ignores  them  entirely. 
Of  course  it  did  not  intend,  in  this  indirect  way, 
to  abolish  or  destroy  what  it  knew  nothing 
about,  and  of  which  it  did  not  even  admit  the 
existence. 

§  135.  By  the  phrase  "  including  those  bound 


160  THE  LEGISLATIVE  DEPARTMENT. 

to  service  for  a  term  of  years,"  it  appears  that 
some  persons,  not  strictly  and  properly  belong- 
ing to  the  class  of  free  persons,  are  directed 
expressly  to  be  placed  in  that  class.  The  effect 
of  this  form  .of  expression  is  to  add  to  the  class 
described  some  who  would  otherwise  be  ex- 
cluded. If  you  say  of  persons  twenty-one 
years  of  age,  including  those  who  have  red  hair, 
it  is  insensible  and  unmeaning;  because  those 
who  have  red  hair  were  included  before,  as  well 
as  those  who  have  black  hair.  But  if  you  say 
of  persons  twenty-one  years  of  age,  including 
those  who  will  complete  their  twenty-first  year 
before  Christmas,  this  is  intelligible,  and  adds 
to  the  list  those  who  would  otherwise  be  ex- 
cluded. So  when  you  speak  of  free  persons, 
including  those  bound  to  service  for  a  term  of 
years,  you  add  some  who  were  not  otherwise 
included.  This  cannot  mean  aliens  ;  because, 
whether  they  are  or  are  not-  free  in  the  sense  of 
the  Constitution,  as  aliens,  they  are  no  more  or 
less  so  for  being  under  bonds  for  a  term  of  years. 
If  they  are  not  included  without  being  under 
bonds,  they  are  certainly  no  more  free,  by  being 
under  bonds  for  a  term  of  years.  So  they  cannot 
be  added  on  account  of  this  qualification.  If 
alienage  excludes  them,  they  are  aliens  still. 
If  it  does  not  exclude  them,  they  are  not  added 
by  their  bonds. 

§  136.  This  cannot  mean  slaves,  because  per- 
sons "  bound  to  service  for  a  term  of  years  "  are 


THE  LEGISLATIVE  DEPARTMENT.  161 

not  slaves,  and  never  were  so  considered  any- 
where. All  such  are  free,  in  the  sense  of  the 
Constitution,  and  included,  independent  of  this 
clause.  So  they  are  not  added  by  it. 

The  other  phrase,  "  excluding  Indians  not 
taxed,"  is  of  a  similar  character.  It  excludes 
those  who  would  otherwise  be  included.  Indians 
are  free,  whatever  may  be  the  constitutional 
sense  of  the  word.  They  are  free  in  opposition 
to  slave,  certainly;  and  they  are  equally  so  in 
opposition  to  bond,  for  they  are  under  no  kind 
of  bonds  to  any  body.  And  they  are  free  in 
opposition  to  alien;  for  they  are  natural-born 
citizens  of  the  land,  and  so  have  the  best  pos- 
sible franchise.  They  would  necessarily  be  in- 
cluded, but  for  this  express  exclusion. 

§  137.  If  the  second  class,  "  all  other  persons," 
are  aliens,  then  the  effect  of  this  provision  would 
be  to  take  a  portion  of  the  aliens,  and  make 
them  free,  —  put  them  into  the  first  class ;  and 
the  ground  of  discrimination  would  be  the  bond 
to  temporary,  instead  of  permanent,  service. 
Aliens  as  such  are  not  bound  at  all;  but  if  any 
of  them  are  so,  and  a  part  of  these  are  to  be 
favorably  distinguished  from  the  rest  in  respect 
to  citizenship,  it  would  be  those  most  perma- 
nently bound.  For  those  bound  permanently 
would  at  least  be  permanent  residents,  while 
those  bound  for  w  a  term  of  years,"  which  means 
any  definite  time,  whether  days,  weeks,  months, 

or  years,  might  soon  go  back  to  the  land  from 

n 


162  THE  LEGISLATIVE  DEPARTMENT. 

whence  they  came.  But  bondage  of  any  sort 
has  no  relation  to  alienage;  and,  if  the  idea  had 
been  to  take  a  portion  of  the  aliens,  and  put 
them  among  the  free,  they  would  not  have  been 
selected  with  reference  to  their  being  or  not 
being  bound  to  service  or  any  thing  else,  nor 
with  reference  to  the  time  the  bond  had  to  run; 
but  with  reference  to  age,  property,  education, 
business,  or  some  other  qualification  for  good 
citizenship. 

§  138.  If  the  second  class, w  all  other  persons," 
are  slaves,  then  the  purport  of  this  provision 
would  be  to  take  a  part  of  the  slaves,  the  second 
class,  and  make  them  free  persons,  —  place  them 
in  the  first  class.  But  if  a  slave  can  be  bound 
at  all,  or  be  under  any  obligation,  he  certainly 
cannot  be  bound  temporarily,  ^o  man  can  be 
a  slave  for  a  term  of  years,  because  this  would 
give  him  a  right  to  have  his  slavery  terminate 
when  the  years  were  ended.  But  a  slave  cannot 
hold  this  right,  and  be  a  slave,  any  more  than 
he  can  hold  any  other  right,  and  retain  the  same 
status.  So  that,  on  the  supposition  that  the 
second  class  are  slaves,  the  provision  in  favor 
of  those  bound  for  a  term  of  years  means 
nothing,  transfers  nobody  to  the  other  class,  and 
is  altogether  nugatory.  So  the  second  class, 
w  all  other  persons  "  than  free  persons,  are  neither 
aliens  nor  slaves. 

§  139.  The  correlative  of  free,  as  here  used, 
is  bond;  and  the  two  classes  are  free  persons 


THE  LEGISLATIVE  DEPARTMENT.  163 

and  bound  persons.  A  man  may  be  under  a 
legal  obligation,  or  be  bound  to  do  any  thing; 
but  the  bond  here  intended  is  doubtless  for  per- 
sonal service,  and  a  part  of  those  under  this 
kind  of  legal  bond  are  transferred  to  the  first  or 
free  class,  on  account  of  the  definite  termination 
of  their  bond.  A  definite  term  is  not  necessarily 
shorter  than  an  indefinite  one,  but  is  considered 
more  favorable  to  the  obligor,  on  account  of 
the  certainty  of  its  termination.  The  difference 
does  not  relate  to  the  character  of  the  bonds, 
either  as  to  the  nature  of  the  duty  or  obligation 
enforced  by  them,  or  the  length  of  time  they 
may  continue;  but  only  to  the  definite  or  in- 
definite time  of  their  termination. 

§  140.  The  bonds  must  be  legal,  for  the  ques- 
tion concerns  only  legal  rights.  They  must 
enforce  legal  if  not  moral  duties  and  obligations, 
or  they  are  not  legal  bonds.  It  will  not  be  pre- 
tended, that  a  mere  forcible  holding  to  com- 
pulsory service,  without  right,  legal  or  moral, 
creates  any  duty  or  obligation,  or  forms  any 
legal  bond  whatever.  A  slave  can  assume 
neither,  nor  can  he  incur  or  be  subjected  to 
either.  The  same  law  that  makes  him  a  slave 
deprives  him  of  all  rights  and  absolves  him  from 
all  duties.  He  can  owe  nothing,  nor  be  under  any 
legal  bond  or  obligation,  because  he  is  deprived 
of  all  capacity  to  be  so;,  or  to  perform  if  he  was 
so.  He  cannot  even  owe  "  service  or  labor,"  be- 
cause his  service  or  labor,  and  even  his  body,  is 


164  THE  SENATE. 

• 

not  his  own.  So  that  slaves  cannot  be  included 
among  the  persons  "  bound  to  service,"  because 
they  cannot  be  under  any  such  obligation,  or 
owe  any  such  duty.  They  cannot  be  among  the 
class  of  "  other  persons  "  than  "  free  persons," 
because  both  classes  are  citizens,  "  people  of  the 
several  States ; "  and  slaves  cannot  be  so,  for 
want  of  franchise  or  right,  which  they  cannot 
hold  any  more  than  any  other  right,  natural  or 
constitutional. 

§  141.  There  is  yet  another  reason  why  slaves 
cannot  be  intended  by  either  classification ;  which 
is,  because  there  are  none,  and  can  be  none, 
under  the  jurisdiction  of  our  government.  The 
Constitution  was  made  "  to  secure  the  blessings 
of  liberty."  It  perpetuates  the  right  to  liberty 
by  perpetuating  the  common-law  right  to  the 
" writ  of  habeas  corpus"  which  restores  liberty 
whenever  it  is  infringed.  And  it  declares  that 
"no  person  shall  be  deprived  of  ...  liberty  .  .  . 
without  due  process  of  law."  So  there  can  be 
no  slaves  in  the  land.  There  never  was,  and 
never  can  be,  a  person  legally  held  in  slavery 
under  our  Constitution.  This  principle  is  now 
[1865]  fully  recognized  by  the  thirteenth  Amend- 
ment. 

THE   SENATE. 

§  142.  The  other  branch  of  the  legislative 
department  is  called  the  Senate,1  and  is  com- 

1  Section  3. 


THE   SENATE.  165 

posed  of  two  Senators  from  each  State,  chosen 
by  the  legislature  thereof,  for  six  years,  each 
having  one  vote;  and  the  body  so  classified,  that 
one-third  of  the  whole  number  go  out  every  two 
years.  If  vacancies  happen  during  the  recess 
of  the  legislature  of  any  State,  the  executive 
thereof  may  make  temporary  appointments  until 
the  next  meeting  of  the  legislature,  which  shall 
then  fill  such  vacancies.  If  the  legislature  ad- 
journ without  filling  the  vacancy,  it  has  been 
questioned  whether  the  place  can  be  otherwise 
filled.  But  it  is  difficult  to  see  why,  when  the 
legislature,  by  adjourning  without  making  an 
appointment,  create  a  vacancy,  this  is  not  a  va- 
cancy occurring  or  happening  during  the  recess, 
and  so  to  be  filled  by  a  new  executive  appoint- 
ment. Such  a  vacancy  certainly  did  not  "hap- 
pen" till  the  State  legislature  had  adjourned;  for 
the  appointment  held  good  till  the  adjournment. 
It  must,  then,  have  happened  "  during  the  re- 
cess," and  so  should  be  filled  by  a  new  executive 
appointment.  It  has  been  held  by  the  Senate, 
that  a  legislative  appointment,  made  by  the  body 
in  office  when  the  vacancy  occurred,  supersedes 
an  appointment  made  by  a  prior  legislature  in 
anticipation  of  the  vacancy.  A  Senator  must 
be  thirty  years  of  age,  have  been  nine  years  a 
citizen  of  the  United  States,  and  when  elected 
be  an  inhabitant  of  the  State  for  which  he  is 
chosen. 


166          THE  SEPARATE  POWERS. 
THE  SEPARATE  POWERS. 

§  143.  The  separate  powers  of  the  Senate  and 
House  of  Representatives  are  specified  in  dif- 
ferent sections  of  the  first  Article.  Each  House 
shall  choose  its  own  officers,  except  the  "  Presi- 
dent of  the  Senate;"  and  be  the  judge  of  the 
elections,  returns,  and  qualifications  of  its  own 
members.  This  is  in  the  nature  of  a  judicial 
power,  and  should  be  regulated  by  known  prin- 
ciples of  law.  Each  House  may  not  make  rules 
prescribing  the  time,  place,  and  manner  of  elect- 
ing their  members,  or  how,  when,  and  by  whom 
they  may  be  elected  ;  but  they  may  judge 
whether  the  election,  when  made,  was  in  con- 
formity to  such  rules  as  were  prescribed  by  law. 
A  majority  of  each  shall  constitute  a  quorum  to 
do  business.  This  has  been  held  to  be  a  majority 
of  the  members  actually  sworn  in  and  entitled 
to  seats  at  the  time,  and  not  a  majority  of  possi- 
ble members,  or  a  majority  of  a  full  delegation 
from  all  the  States.  But  a  smaller  number  may 
adjourn  from  day  to  day,  and  may  be  authorized 
to  compel  the  attendance  of  absent  members,  in 
such  manner  and  under  such  penalties  as  each 
House  may  provide.  Each  House  also  deter- 
mines the  rules  of  its  proceedings,  and  can 
punish  its  members  for  disorderly  behavior ; 
and,  with  the  concurrence  of  two-thirds,  expel  a 
member.  They  shall  each  keep  a  journal  of  its 
proceedings,  and  from  time  to  time  publish  such 


THE   SEPARATE  POWERS.  167 

parts  as  do  not  require  secrecy;  and  enter  there- 
on the  yeas  and  nays  on  any  question,  when 
desired  by  one-fifth  of  the  members  present. 

§  144.  The  members  of  both  Houses  shall  re- 
ceive a  compensation  for  their  services,  to  be 
ascertained  by  law;  and  shall  be  privileged  from 
arrest  during  their  attendance  at  the  session  of 
their  respective  Houses,  and  in  going  to  and 
returning  from  the  same,  except  in  cases  of 
treason,  felony,  and  breach  of  the  peace;  and, 
for  any  speech  or  debate  in  either  House,  shall 
not  be  questioned  in  any  other  place.  No 
Senator  or  Representative  shall,  during  the  time 
for  which  he  was  elected,  be  appointed  to  any 
civil  office  under  the  authority  of  the  .United 
States,  which  shall  have  been  created,  or  the 
emoluments  whereof  shall  have  been  increased, 
during  such  time;  and  no  person  holding  any 
office  under  the  United  States  shall  be  a  mem- 
ber of  either  House  during  his  continuance  in 
office. 

§  145.  The  House  of  Representatives  shall 
have  the  sole  power  of  impeachment,  and  shall 
originate  all  bills  for  raising  revenue;  but  the 
Senate  may  propose  amendments  to  revenue 
bills,  as  in  other  cases,  and  shall  have  the  sole 
power  to  try  all  impeachments.  When  sitting 
for  that  purpose,  they  shall  be  on  oath  or  affirma- 
tion. When  the  President  of  the  United  States 
is  tried,  the  Chief  Justice  shall  preside;  and  no 
person  shall  be  convicted  without  the  concur- 


168  THE   SEPAEATE  POWERS. 

rence  of  two-thirds  of  the  members  present. 
Judgment  in  cases  of  impeachment  shall  not 
extend  further  than  to  removal  from  office,  and 
disqualification  to  hold  and  enjoy  any  office  of 
honor,  trust,  or  profit  under  the  United  States; 
but  the  party  convicted  shall  be  liable  to  indict- 
ment, trial,  judgment,  and  punishment,  according 
to  law. 

§  146.  In  the  case  of  a  conviction  on  impeach- 
ment of  the  President,  Yice-President,  or  other 
civil  officer  of  the  United  States,  for  treason, 
bribery,  or  other  high  crime  or  misdemeanor,  the 
judgment  must  be  removal,  and  can  be  nothing 
less.1  "Whether  persons  not  in  any  civil  office 
may  be  impeached,  and  whether  persons  in 
office  may  be  impeached  for  any  less  offence 
than  those  above  named  for  which  they  must  be 
removed,  the  Constitution  does  not  expressly 
decide.  But  disqualification  for  office  may  be 
superadded  in  the  case  of  officers,  and  made  the 
whole  judgment  in  other  cases,  if  there  may  be 
any.  In  the  case  of  William  Blount,  the  Senate, 
having  expelled  him  from  their  body,  declined 
to  try  him  on  the  impeachment.  Many  princi- 
ples were  ably  discussed  by  learned  counsel ;  but 
it  is  difficult  to  say  what  principle  was  decided 
by  sustaining  the  plea  to  the  jurisdiction  of  the 
.Senate.  In  the  case  of  John  Pickering,  they 
substantially  decided  that  a  conviction  and  judg- 
ment of  removal  might  be  had  for  less  offences 

1  Article  II.,  section  4. 


THE   SEPARATE  POWERS.  169 

than  those  above  specified;  or  rather,  that  a  low 
crime  was  a  high  misdemeanor  in  a  Judge.1 

§  147.  "When  the  President  of  the  Senate, 
who  is  the  Yice-President  of  the  United  States, 
shall  be  absent,  or  exercise  the  office  of  Presi- 
dent of  the  United  States,  the  Senate  shall 
choose  a  President  pro  tempore.  It  has  been 
decided,  that  each  House  has,  by  implication,  the 
power  to  punish  for  contempt;  though  no  such 
power  is  expressly  given  by  the  Constitution, 
except  in  regard  to  their  own  members,  or  has 
been  conferred  by  law.  It  is  founded  on  its 

1  In  the  case  of  Blount,  the  House  refused  either  to  direct  their 
Managers  to  move  for  process  to  compel  his  personal  attendance,  or  to 
proceed  without  it ;  thus  leaving  the  matter  to  the  Senate.  The  Senate, 
on  motion,  admitted  an  appearance  by  counsel,  and  then  permitted  them 
to  file  their  plea,  without  objection.  Nothing  can  be  inferred  from  this 
action,  against  the  right  of  the  Senate  to  take  the  respondent  into  custody, 
either  with  or  without  a  voluntary  appearance  on  summons.  In  opening 
the  prosecution,  Mr.  James  A.  Bayard,  Chairman  of  the  Managers,  said, 
"  The  Constitution  has  said  who  shall  have  the  power  to  impeach,  and 
who  of  trying  impeachments.  It  has  also  limited  the  extent  of  the 
punishment.  But  it  has  not  described  the  persons  who  shall  be  the  ob- 
jects of  impeachment,  nor  defined  the  cases  to  which  the  remedy  shall 
be  confined.  .  .  .  Upon  these  points  we  are  designedly  left  to  the  regu- 
lations of  the  common  law.  .  .  .  The  question  therefore  is,  What  persons, 
for  what  offences,  are  liable  to  be  impeached  at  common-law  ?  .  .  .  The 
question  of  impeachability  is  a  question  of  discretion  only  with  the 
Commons  and  Lords.  .  .  .  All  the  King's  subjects  are  liable  to  be  im- 
peached by  the  Commons  and  tried  by  the  Lords."  Judge  Pickering 
was  impeached,  tried,  convicted,  and  removed,  in  his  absence  and  with- 
out counsel.  His  misfortune  was,  that  he  held  an  office,  the  duties  of 
which,  by  the  providence  of  God,  in  depriving  him  of  reason,  he  was 
disqualified  to  perform  or  to  resign  ;  and  for  the  same  reason  was  unable 
to  defend  himself,  or  even  to  appoint  counsel  to  do  it  for  him.  His  office 
was  wanted  by  individuals  from  personal  considerations,  and  by  the  Ad- 
ministration to  pay  partizans.  Under  such  circumstances,  impeachment 
was  a  ready  remedy ;  and,  with  or  without  offences,  which  were  not  likely 
to  be  wanting,  encountered  no  obstacles  adequate  to  insure  a  correct 
administration  of  justice. 


170  THE   SEPARATE  POWERS. 

necessity  for  self-preservation;  but  the  punish- 
ment extends  only  to  imprisonment,  and  that 
only  during  the  continuance  of  the  body  exer- 
cising the  power.1  Neither  House  can  adjourn 
for  more  than  three  days  during  the  session 
of  Congress,  nor  to  any  other  place  than  that 
in  which  they  are  sitting,  without  the  consent 
of  the  other  House ;  and  each  is  a  complete 
check  upon  the  other  in  all  the  business  of  legis- 
lation. 

§  148.  The  Senate,  for  certain  specified  pur- 
poses, constitute  an  advisory  council  to  the 
President,  and  so  far  participate  in  the  exercise 
of  the  executive  power.  The  appointment  of 
ambassadors,  other  public  ministers,  and  consuls, 
judges  of  the  Supreme  Court,  and  all  other 
officers  of  the  United  States,  whose  appoint- 
ments are  not  otherwise  provided  for  in  the 
Constitution,  and  which  are  established  by  law, 
shall  be  made  by  and  with  the  advice  and  con- 
sent of  the  Senate  j  and  the  exercise  of  his 
r?  power  ...  to  make  treaties "  shall  be  "  by 
and  with  the  advice  and  consent  of  the  Senate, 
.  .  .  provided  two-thirds  of  the  Senators  present 


concur." 


§  149.  By  the  second  Article  and  twelfth 
Amendment,  certain  duties  are  assigned  to 
each  of  the  two  Houses  separately,  in  relation 

to  the  choice  of  President  and  Yice-President. 

• 

"When  the  votes  of  the  electors  for  those  officers 

i  6  Wheat.,  204. 


THE  SEPARATE  POWERS.  171 

are  counted,  in  the  presence  of  the  two  Houses 
in  convention,  if  no  person  has  a  majority  of 
the  whole  number  of  electors  appointed,  then 
from  the  persons  having  the  highest  numbers, 
not  exceeding  three,  on  the  list  of  those  voted 
for  as  President,  the  House  of  Representatives 
shall  choose  immediately,  by  ballot,  the  Presi- 
dent; the  votes  to  be  taken  by  States,  the  repre- 
sentation from  ejach  State  having  one  vote,  and 
a  quorum  for  the  purpose  shall  consist  of  one 
or  more  members  from  two-thirds  of  the  States, 
a  majority  of  all  the  States  being  necessary  to  a 
choice.  If  no  person  have  a  similar  majority 
of  the  votes  of  the  electors  for  Vice-Presi- 
dent,  then,  from  the  two  highest  numbers  on 
the  list,  the  Senate  shall  choose  the  Yice-Presi- 
dent ;  a  quorum  for  the  purpose  being  two-thirds 
of  the  whole  number  of  Senators,  and  a  majority 
of  the  whole  number  being  necessary  to  a  choice. 
On  the  same  principle  that  a  quorum  for  ordi- 
nary business  was  decided,  this  quorum  must  be 
two-thirds  of  the  Senators  actually  qualified  and 
entitled  to  seats  at  the  time.  In  regard  to  the 
House  of  Representatives,  the  expression  is  dif- 
ferent. The  quorum  is  a  representation  from 
two-thirds  of  the  States,  and  a  majority  of  all 
the  States  is  necessary  for  a  choice.  There  has 
been  no  direct  decision  by  the  House  what  this 
majority  and  quorum  is;  but  it  may  be  safely 
inferred,  from  the  concurrent  order  of  both 
Houses  in  relation  to  the  election  of  1865,  that 


172  THE  CONGRESS. 

the  returns  from  certain  States  then  in  rebellion, 
and  not  represented  in  Congress,  should  not  be 
received  or  counted ;  that  the  decision  would 
be,  if  required  to  be  made,  that  no  State  in 
rebellion,  without  representation  in  Congress, 
and  without  a  republican  government  recognized 
by  Congress  as  in  subordination  or  conformity 
to  the  Constitution,  could  be  considered  for  this 
purpose  as  a  State  within  the  Union,  and  counted 
in  order  to  ascertain  how  many  made  a  majority 
or  two-thirds  of  all  the  States. 

THE  CONGRESS. 

§  150,  The  Senate  and  House  of  Representa- 
tives constitute  the  "  Congress  of  the  United 
States,"  in  which  are  "  vested "  "  all  legislative 
powers  granted"  by  the  Constitution.1  They 
shall  assemble  at  least  once  in  every  year,  and  on 
the  first  Monday  in  December,  unless  a  different 
day  shall  be  appointed  by  law.2  Every  bill, 
order,  resolution,  or  vote  of  Congress,  requiring 
the  concurrence  of  the  two  Houses  (except  on  a 
question  of  adjournment),  shall,  before  it  be- 
comes a  law  or  shall  take  effect,  be  presented 
to  the  President  of  the  United  States.  If  he 
approve,  he  shall  sign  it;  but,  if  not,  he  shall 
return  it,  with  his  objections,  to  that  House  in 
which  it  shall  have  originated,  who  shall  enter 
the  objections  at  large  on  their  Journal,  and 

1  Section  1.  2  Section  7. 


THE   CONGRESS.  173 

proceed  to  reconsider  it.  If,  after  such  recon- 
sideration, two-thirds  of  that  House  shall  agree 
to  pass  it,  it  shall  be  sent,  together  with  the 
objections,  to  the  other  House,  by  which  it  shall 
likewise  be  reconsidered ;  and,  if  approved  by 
two-thirds  of  that  House,  it  shall  become  a  law, 
or  valid  Act  of  Congress,  notwithstanding  the 
President's  objections.  But,  in  all  such  cases, 
the  votes  of  both  Houses  shall  be  determined  by 
yeas  and  nays;  and  the  names  of  the  persons 
voting  for  and  against  the  measure  shall  be 
entered  on  the  Journal  of  each  House  respec- 
tively. If  it  shall  not  be  returned  by  the  Presi- 
dent within  ten  days  (Sundays  excepted)  after 
it  shall  have  been  presented  to  him,  the  same 
shall  be  valid,  in  like  manner  as  if  he  had 
signed  it;  unless  the  Congress,  by  their  adjourn- 
ment, prevent  its  return,  in  which  case  it  shall 
not  be  so.  It  is  said,  that  joint  resolutions  of 
the  two  Houses  for  directing  the  mode  of  pro- 
ceeding in  convention  for  counting  the  votes  of 
the  electors  for  President  and  Vice-President, 
adopting  a  uniform  mode  of  organizing  a  new 
Congress,  initiating  and  qualifying  its  members, 
regulating  the  mode  of  transacting  business  be- 
tween themselves  and  with  the  executive,  and 
proposing  alterations  of  the  Constitution,1  do  not 
require  the  action  of  the  President,  and  need 
not  be  presented  to  him.  An  instance  of  the 
first  was  when  the  two  Houses,  by  concurrent 

1  Hollingsworth  v.  Virginia,  3  Dall.  Rep.  378. 


174  THE   CONGRESS. 

resolution,  in  February,  1864,  directed  that  cer- 
tificates of  votes  given  in  certain  States  then  in 
rebellion  against  the  government  (naming  them), 
and  then  in  the  hands  of  the  Yice-President, 
should  not  be  opened  by  the  Yice-President,  nor 
laid  before  the  Convention.  Instances  of  the 
second  kind  are  in  the  Joint  Rules  and  Orders 
of  the  two  Houses,  and  in  the  Resolution  of 
March,  1866,  by  which  the  two  Houses  deter- 
mined that  neither  House  should  consider  the  cre- 
dentials of  any  man,  presented  as  a  member  from 
a  State  lately  declared  to  be  in  rebellion,  until 
Congress  shall  have  decided  that  such  State  is 
entitled  to  representation  therein.  The  other 
kind  was  settled  in  the  mode  of  adopting  the 
thirteenth  Amendment,  and  in  the  measures 
taken  towards  .other  amendments  since. 


CHAPTER    XII. 

LEGISLATIVE  POWERS. 

§  151.  THE  whole  business  and  duty  for  ( "  in 
order  to " )  which  the  government  was  w  or- 
dained and  established,"  to  execute  the  Consti- 
tution and  accomplish  its  avowred  purposes,  is 
divided  and  distributed  among  the  different 
departments.  The  three  departments  have  in- 
dependent duties,  with  commensurate  powers, 
occupying  the  whole  field  of  both,  belonging 
to  the  government.  The  legislative  portion 
devolved  upon  Congress  is  described  by  the 
words,  K  all  legislative  powers  herein  granted 
shall  be  vested  in  Congress." l  What  are  these 
powers?  It  is  obvious  that  the  words  "herein 
granted  "  are  restrictive.  "  All  legislative  pow- 
ers" generally,  or  power  to  make  all  laws,  or 
even  all  laws  consistent  with  natural  rights  and 
free  government,  according  to  the  principles 
of  universal  political  law,  are  not  necessarily  in- 
cluded, although  what  are  included  must  con- 
form to  those  principles.  This  grant  is  only  a 
dividend  or  distributive  share  of  the  general 

1  Section  1. 

[175] 


176  LEGISLATIVE  POWERS. 

powers  and  duties  before  assigned  to  the  gov- 
ernment, and  of  course  cannot  extend  beyond 
the  whole,  of  which  they  constitute  only  a  part. 

§  152.  What  portion  of  the  general  powers  of 
the  government  are  legislative,  within  the  mean- 
ing of  our  Constitution,  depends  on  two  con- 
siderations. 1st,  Are  they  legislative,  according 
to  the  principles  of  political  law?  or,  2d,  Are 
they  specially  assigned  by  the  Constitution  to 
that  department?  If  they  are  not  adapted  to  aid 
in  the  execution  of  any  of  the  avowed  purposes 
of  the  people  in  the  formation  of  their  govern- 
ment, they  are  not  "  herein  granted "  at  all, 
because  they  form  no  part  of  the  general  powers 
of  the  government.  If  they  are  so  adapted, 
then  they  may  be  "  herein  granted  "  to  the  legis- 
lature, because  they  constitute  a  part  of  the 
general  powers  suited  to  effect  those  purposes. 
So,  then,  if  they  are  legislative  in  their  nature, 
they  are  "  herein  granted "  expressly  for  that 
reason.  If  they  are  specially  assigned  to  this 
department,  then  they  are  "  herein  granted," 
whether  strictly  legislative  or  not;  because  the 
Constitution,  by  so  granting  them  to  the  legis- 
lative body,  has  made  them  legislative  at  least 
for  this  purpose. 

§  153.  In  short,  the  legislative  power,  as  herein 
granted,  is  the  power  defined  in  the  8th  section, 
to  make  all  laws  for  executing  the  Constitution, 
and  is  co-extensive  with  the  purposes  and  ob- 
jects of  the  people  in  ordaining  it.  Legislative 


LEGISLATIVE  POWERS.  177 

power  is  the  power  to  make  laws.  w  All  legis- 
tive  power  "  is  the  power  to  make  all  laws  or 
any  laws.  "  All  legislative  powers  herein  grant- 
ed "  are  the  powers  of  making  all  the  laws 
adapted  to  the  execution  of  the  duties  hereby 
imposed  on  the  government.  It  cannot  mean 
merely  the  powers  specially  and  expressly  named 
elsewhere  in  the  Constitution,  because  these  are 
entirely  inadequate  even  to  initiate,  and  much 
more  so  to  sustain  and  administer,  the  govern- 
ment. It  cannot  mean  the  enumerated  powers, 
so  called,  or  powers  particularly  conferred  on 
Congress  by  specific  provisions;  for  that  would 
make  the  Constitution  talk  nonsense,  by  saying 
that  the  powers  conferred  on  Congress  shall  be 
vested  in  Congress. 

§  154.  The  government  possesses  three  dhTer- 
ent  classes  of  powers  :  1st,  Those  necessary  to 
enable  it  to  accomplish  all  the  declared  objects 
for  which  it  was  established,  and  execute  the 
whole  Constitution.  2d,  Those  specially  de- 
volved on  the  government  at  large,  by  particular 
provisions,  —  as  the  guarantee  clause  in  Article 
IY.,  and  the  validity  of  debts  and  engagements 
in  Article  YI. ;  and,  3d,  Those  specially  delegated 
to  particular  departments  or  officers.  So  far  as 
these  last  are  delegated  to  Congress,  Congress 
has  them,  of  course.  So  far  as  they  are  dele- 
gated to  other  departments  or  officers,  or 
devolved  on  the  government  generally,  and  in- 
clude or  require  the  making  of  laws,  the  power 

12 


178  LEGISLATIVE  POWERS. 

to  make  them  is  here  conferred  on  Congress, 
because  they  are  the  legislative  part  of  those 
duties ;  and  the  same  afterwards  conferred  by 
the  last  clause  of  the  8th  section,  Article  I.  So 
that  the  "  legislative  powers  herein  granted,"  is 
just  the  power  [no  more,  and  no  less]  "  to  make 
all  laws  .  .  .  necessary  and  proper  for  carrying 
into  execution  ...  all  ...  powers  vested  .  .  . 
in  the  government,  ...  or  in  any  department  or 
officer  thereof; "  which  are  just  the  powers  of 
administering  the  government  and  executing  the 
whole  Constitution. 

^  §  155.  The  question  whether  a  particular  pow- 
er is  legislative  or  not,  can  arise  only  in  decid- 
ing by  wln'ch  department  it  shall  be  exercised. 
Whether  it  belongs  to  the  government  or  not, 
depends  on  the  question  whether  it  is  legiti- 
mately adapted  to  the  accomplishment  of  any  of 
its  avowed  objects  and  duties.  If  it  is,  it  must 
be  exercised  by  the  proper  department.  If  it  is 
not,  it  is  of  no  consequence  whether  it  is  legis- 
lative or  otherwise;  for  in  neither  case  can  it  be 
herein  granted.  Nothing  is  "  herein  granted  " 
to  this  department,  or  any  other,  but  what  is 
appropriate  to  the  execution  of  the  purposes  of 
the  Constitution ;  and  every  thing  that  is  so, 
consistent  with  good  morals  and  the  fundamental 
principles  of  civil  society,  unless  specially  pro- 
hibited, is  "  herein  granted."  ^  In  the  language 
of  Chief  Justice  Marshall,  "  Let  the  end  be 
legitimate,  let  it  be  within  the  scope  of  the 


LEGISLATIVE  POWERS.  179 

Constitution  [its  declared  purposes],  and  all 
means  which  are  appropriate,  which  are  plainly 
adapted  to  that  end,  which  are  not  prohibited, 
but  consist  with  the  letter  and  spirit  of  the  Con- 
stitution, are  constitutional."1 

§  156.  Nothing  can  be  made  more  plain,  direct, 
and  conclusive  of  this  whole  subject,  than  the 
last  clause  of  the  8th  section.  Its  exactness, 
comprehensiveness,  and  verbal  accuracy,  cannot 
be  surpassed.  By  the  1st  section,  the  legisla- 
tive power  is  vested  in  Congress;  and,  by  the 
8th,  it  is  logically  defined  to  be  "  power  to 
make  all  laws  .  .  .  necessary  and  proper  [which 
has  been  held  to  mean  appropriate  or  conve- 
nient] for  carrying  into  execution  .  .-.  .all  ... 
powers  vested  ...  in  the  government,  ...  or 
in  any  department  or  officer  thereof."  This  is 
broad,  full,  and  explicit.  It  includes  all  the 
business  of  the  legislative  department,  whether 
particularized  in  special  grants  to  Congress,  or 
dependent  on  the  general  or  special  duties  of 
the  government,  or  any  of  its  departments  or 
officers.  Many  special  clauses  assign  particular 
duties  to  Congress,  and  many  others  make  spe- 
cial regulations  in  regard  to  particular  subjects, 
obligatory  on  the  government ;  but  specifying 
no  particular  mode  of  execution,  any  more  than 
is  done  in  regard  to  the  general  duties  which 
embrace  and  cover  them  all.  The  principle  on 
which  the  legislative  duties  of  Congress  is 

1  McCullough  v.  Maryland,  4  Wheat  Rep. 


180  LEGISLATIVE   POWERS.  —  GENERAL. 

founded,  is  the  same  in  both  cases.  It  is  to 
make  laws  for  executing  the  Constitution,  or  the 
powers  of  the  government,  whether  general 
or  special,  though  the  general  include  all  the 
special. 

GENERAL. 

§  157.  By  the  general  powers  of  Congress 
is  meant  all  those  which  devolve  upon  them,  as 
the  legislative  or  law-making  department  of  the 
government,  bound  to  the  performance  of  that 
portion  of  all  its  duties,  though  not  otherwise 
assigned  to  them.  Legislative  power  is  re- 
stricted by  the  general  principles  of  free  govern- 
ment; and  the  legislative  power  of  Congress  is 
limited  also  within  the  actual  powers  of  the 
government  under  the  Constitution.1  But  they 
are  co-extensive  with  those  powers,  and  may  be 
applied  to  all  the  purposes  and  objects  for  which 
the  government  was  instituted. 

§  158.  They  are  co-extensive,  because  what- 
ever is  required  of  the  whole  government  de- 
volves directly  upon  the  different  departments. 
The  government  can  act  only  through  them.  If 
particular  objects  and  purposes  of  the  govern- 
ment may  be  accomplished  without  legislation, 
the  duty  may  devolve  on  one  of  the  other 
departments  ;  but,  if  legislation  is  needed,  it 

i  Calder  v.  Bull,  3  Dall.  Rep. ;  Fletcher  v.  Peck,  6  Cranch's  Rep.  ; 
Terrett  v.  Taylor,  9  Cranch's  Rep. ;  Argument  of  Jeremiah  Mason,  Case 
of  Dart.  Coll.,  p.  33 ;  Wilkinson  v.  Leland,  2  Peter's  R.  657. 


LEGISLATIVE  POWERS.  —  GENERAL.  181 

must  devolve  on  Congress,  for  they  only  can 
make  laws.  Congress  is  directly  vested  with  all 
the  legislative  powers  of  the  government,  —  all 
legislative  powers  herein  granted,  —  that  is, 
all  the  legislative  powers  of  the  Constitution. 
It  grants  no  legislative  power  to  any  body  else. 
What  this  legislative  power  so  vested  in  Con- 
gress is,  is  exactly  defined  in  the  8th  section, 
to  be  a  K  power  to  make  all  laws  .  .  .  necessary 
and  proper  for  carrying  into  execution  ...  all 
.  .  .  powers  vested  .  .  .  in  the  government." 
The  Constitution  vests  no  legislative  poAver  in 
the  State  governments:  all  the  duties  it  enjoins 
on  the  States,  their  officers,  governments,  or 
citizens,  are  only  executory;  and  necessarily  in- 
volve no  legislative  power  any  more  than  if  they 
had  all  been  enjoined  on  the  Justices  of  the 
Courts,  or  the  Sheriffs  of  the  counties.  The 
President,  with  advice,  &c.,  "  shall  have  power 
to  make  treaties,"  which,  like  the  Constitution 
itself,  are  a  part  of  the  law  of  the  land  ;  but 
they  are  not  an  exercise  of  legislative  power, 
any  more  than  the  Constitution  itself  is,  but  are 
expressly  made  executive  acts ;  which  may  also, 
in  some  either  cases,  have  the  force  of  laws. 

§  159.  Congress  may  therefore  legislate  or 
make  laws  to  perfect  the  Union,  establish  justice, 
insure  domestic  tranquillity,  provide  for  the 
common  defence,  promote  the  general  welfare, 
and  secure  the  blessings  of  liberty;  as  well  as 
for  carrying  into  execution  all  the  other  and 


182  LEGISLATIVE  POWEKS.  —  GENERAL. 

more  special  provisions  of  the  Constitution,  so 
far  as  such  legislation  may  be  required,  or  have 
a  tendency  to  effect  any  of  those  objects.  The 
general  duties  above  mentioned,  which  include 
all  the  others,  have  already  been  remarked  upon ; 
and  in  regard  to  the  others  it  may  be  observed, 
that  every  precept,  mandate,  requirement,  or 
restriction,  and  in  fact  almost  every  sentence 
of  the  Constitution,  may,  in  some  way  or  other, 
afford  occasion  for  legislative  action.  Some  of 
these  call  for  particular  attention. 

§  160.  By  Article  I.,  section  2,  "  Representa- 
tives .  .  .  shall  be  apportioned  among  the  several 
States,  .  .  .  according  to  their  respective  num- 
bers," and  cannot  in  all  exceed  one  for  every 
thirty  thousand.  But  the  whole  number  must 
be  ascertained  before  it  can  be  divided  or  appor- 
tioned. This  is  the  mandate  of  the  Constitu- 
tion, and  of  course  the  supreme  law  of  the  land. 
The  duty  of  executing  it,  as  well  as  all  the  rest 
of  the  Constitution,  rests  upon  the  government 
created  for  that  purpose.  The  powers  and 
duties  of  the  government  are  distributed  among 
three  departments.  No  special  authority  is  here 
given  to  Congress,  any  more  than  there  is  in  the 
other  precept,  "  to  establish  justice."  But  the 
duty  enjoined  upon  the  government  demands 
legislation,  and  w  all  the  legislative  powers  of  the 
government  are  vested  in  Congress."  It  follows 
necessarily,  that,  on  this  and  all  other  subjects 
similarly  situated,  Congress  must  act,  and  K  make 


LEGISLATIVE  PO WEE S.  —  GENERAL.  183 

all  laws  .  .  .  necessary  and  proper  for  carrying 
into  execution  [this]  and  all  other  powers 
vested  by  this  Constitution  in  the  government 
...  or  any  department  or  officer  thereof." 

§  161.  Accordingly  we  find  that  such  has 
been  the  uniform  practice  of  the  government. 
The  Constitution  itself  regulated  the  aggregate 
and  the  apportionment  for  the  first  Congress; 
but  since  that  we  have  never  been  without  a 
law,  duly  enacted  by  Congress,  regulating  the 
subject.  This  duty,  being  legislative,  would 
necessarily  devolve  upon  Congress,  if  left  pre- 
cisely as  it  stands  in  the  2d  section,  without 
further  provision.  But  it  may  be  considered 
as  granted  in  the  4th  section,  as  a  part  of  the 
power  for  regulating  elections,  —  prescribing 
the  manner  of  them.  No  election  of  Repre- 
sentatives can  take  place,  without  knowing  how 
many  are  to  be  voted  for;  and,  if  this  cannot  be 
settled  under  any  other  power  in  the  Constitu- 
tion, it  might  be  settled  under  the  authority  of 
this  section,  though  it  is  one  of  the  necessary 
items  in  the  "  manner  of  holding  elections," 
which  the  State  legislatures  could  not  prescribe 
even  provisionally. 

§  162.  Many  other  duties  are  imposed  on  the 
government  in  a  similar  manner;  that  is,  without 
any  designation  to  which  department  they  may 
belong:  and  they  are  left  to  the  action  of  the 
government,  through  the  appropriate  depart- 
ment. By  section  9, .  w  A  regular  statement  and 


184  LEGISLATIVE   POWERS.  —  GENERAL. 

account  of  the  receipts  and  expenditures  of  all 
public  money  shall  be  published  from  time  to 
time."  By  Article  II.,  w  The  President  shall, 
at  stated  times,  receive  for  his  services  a  com- 
pensation, which  shall  neither  be  increased  nor 
diminished  during  the  period  for  which  he  shall 
have  been  elected;"  and,  by  Article  III.,  "The 
judges  .  .  .  shall,  at  stated  times,  receive  for 
their  services  a  compensation,  which  shall  not  be 
diminished  during  their  continuance  in  office." 
The  2d  section  of  Article  II.,  recognizes  "  the 
executive  departments,"  but  makes  110  provision 
for  their  number,  organization,  or  duties.  So 
Article  III.  establishes  the  "  Supreme  Court," 
and  vests  in  it  the  "  judicial  power  of  the  United 
States,"  but  makes  no  provision  for  its  organiza- 
tion, or  the  mode  of  executing  its  duties.  By 
Article  IV.,  "  The  citizens  of  each  State  shall 
be  entitled  to  all  privileges  and  immunities  of 
citizens  in  the  several  States ; "  and  Chief  Jus- 
tice Taney  says,1  "  These  privileges  and  immuni- 
ties, for  greater  safety,  are  placed  under  the 
guardianship  of  the  general  government."  By 
the  same  section,  fugitives  from  justice  and  from 
labor  are  to  be  delivered  up;  but  it  is  not  said 
how  or  by  whom.  They  are  in  no  custody.  By 
section  4,  "  The  United  States  shall  guarantee, 
to  every  State  in  this  Union,  a  republican  form 
of  government."  By  Article  VI.,  w  The  Sena- 
tors and  Representatives  before  mentioned,  and 

I  16  Peters'  Rep.  636. 


LEGISLATIVE  PO WEES.  —  GENERAL.  185 

the  members  of  the  several  State  legislatures, 
and  all  executive  and  judicial  officers,  both  of 
the  United  States  and  of  the  several  States,  shall 
be  bound  by  oath  or  affirmation  to  support  this 
Constitution."  How,  when,  by  whom;  by  what 
authority;  in  what  form;  how,  where,  and  by 
whom  recorded  and  preserved? 

§  163.  Of  the  same  nature  are  all  the  provi- 
sions of  the  Constitution,  prescribing  certain 
duties  to  the  States,  as  political  bodies,  their 
governments,  officers,  or  people,  as  such,  in  their 
official  or  corporate  capacity.  "  Representatives 
shall  be  ...  chosen  .  .  .  by  the  people  of  the 
several  States."  Then  the  people  must  choose 
them.  If  this  is  their  duty,  they  certainly  have 
the  power,  —  the  elective  franchise,  the  right  of 
suffrage.  "Each  State  shall  have  at  least  one 
Representative."  This  is  not  merely  permissive. 
T  When  vacancies  happen  in  the  representation 
from  any  State,  the  executive  authority  thereof 
shall  issue  writs  of  election  to  fill  such  vacan- 
cies." — "  Senators  .  .  .  shall  be  ...  chosen  by 
the  legislature  "  of  each  State.  — "  Each  State 
shall  appoint  .  .  .  electors "  of  President,  and 
"  the  electors  shall  meet "  and  perform  their 
duties  as  the  Constitution  directs.  :r  The  Judges 
in  every  State  shall  be  bound  by  the  Constitu- 
tion and  laws  of  the  United  States." 

§  164.  Mr.  Madison  truly  says,1  "  The  powers 
of  the  new  government  will  act  on  the  States 

1  Federalist,  No.  40. 


186  LEGISLATIVE  POWERS.  — GENERAL. 

in  their  collective  characters."  But  how  act, 
except,  through  laws  regularly  made  to  enforce 
the  Constitution  ?  Mr.  Hamilton  says,  "  The 
States,  as  well  as  individuals,  are  bound  by  these 
laws."1  In  Martin  v.  Hunter,2  the  Court  say, 
??  It  is  a  mistake,  that  the  Constitution  was  not 
designed  to  operate  upon  States  in  their  cor- 
porate capacities.  It  is  crowded  with  provisions 
which  restrain  or  annul  the  sovereignty  of  the 
States,  in  some  of  the  highest  branches  of  their 
prerogatives.  .  .  .  The  language  of  the  Con- 
stitution is  imperative  upon  the  States,  as  to 
the  performance  of  many  duties.  It  is  impera- 
tive upon  the  State  legislatures  to  make  laws,  &c. 
.  .  .  The  legislatures  of  the  States  are,  in  some 
respects,  under  the  control  of  Congress ;  and  in 
every  case  are,  under  the  Constitution,  bound  by 
the  paramount  authority  of  the  United  States.'' 

§  165.  These  are  all  parts  of  the  supreme  law 
of  the  land,  and  as  such  to  be  executed  by  the 
government.  ~No  special  duty  in  regard  to  any 
of  them  is  assigned  to  Congress  or  any  other 
department.  But  all  of  them  require  the  enact- 
ment of  laws  for  their  enforcement;  and  Con- 
gress has  the  whole  legislative  or  law-making 
power  of  the  government.  Congress  has  ac- 
cordingly made  laws  relating  to  most  of  these 
subjects,  and  might  very  profitably  make  many 
more.  The  duty  of  Congress  to  legislate,  in  all 
this  class  of  cases,  was  first  settled  by  them- 

i  2  Elliot,  362.  2  1  Wheat.  R.,  304. 


LEGISLATIVE  POWERS.  —  GENERAL.      .        187 

selves,  in  the  first  statute  passed  under  the  Con- 
stitution. It  related  to  the  oaths  to  be  taken  by 
the  State  officers,  and  has  remained  in  force 
during  the  whole  history  of  the  government.  It 
was  objected  to  on  its  passage,  for  the  want 
of  power  in  Congress.  But  the  objection  was 
overruled ;  and  the  principle  has  been  universally 
approved  and  practised  upon  ever  since.  It  was 
acted  upon  in  the  statute  relating  to  fugitives 
from  justice  and  from  labor j  and  the  Supreme 
Court  have  decided,  that  Congress  not  only  had 
the  power  to  legislate  upon  it,  but  that  their 
power  was  exclusive.1 

§  166.  This  last  statute,  however,  so  far  as 
respects  fugitives  from  labor,  though  it  said  not 
one  word  about  slaves,  but  followed  the  words 
of  the  Constitution,  applying  to  "  persons  held 
to  labor  "  under  State  laws,  which  of  course  must 
be  constitutional  laws  or  they  are  no  laws,  came 
practically,  by  the  same  sort  of  perversion  that 
was  successfully  applied  to  other  parts  of  the 
Constitution  for  the  same  purpose,  and  without 
any  judicial  examination  or  decision,  to  be  ap- 
plied almost  exclusively  to  Southern  slavery,  or 
persons  held  forcibly  in  bondage,  contrary  to  the 
Constitution  and  all  legal  as  well  as  moral  right. 
It  has  consequently,  with  slavery  itself,  been 
abolished;  and  legislation  on  all  these  subjects, 
and  all  others  covered  by  the  Constitution  and 
within  the  purposes  of  the  fundamental  law  of 

i  16  Peters'  Rep.,  636. 


188  LEGISLATIVE  POWERS.  —  GENERAL. 

the  land,  is  authorized,  by  its  fitness  and  adap- 
tation "  for  carrying  into  execution  ...  all  the 
powers  vested  by  this  Constitution  in  the  gov- 
ernment of  the  United  States." 1 

1  In  the  debate  on  the  National  Bank  in  the  House  of  Representatives, 
Feb.  2,  1791,  Mr.  Madison,  commenting  on  the  words  nwessary  and  proper, 
said,  "  These  two  words  had  been  by  some  taken  in  a  very  limited  sense, 
and  were  thought  only  to  extend  to  the  passing  of  such  laws  as  were 
indispensably  necessary  to  the  very  existence  of  the  government.  .  .  . 
He  wished  the  words  understood  so  as  to  permit  the  adoption  of  measures 
the  best  calculated  to  attain  the  ends  of  government,  and  produce  the 
greatest  quantum  of  public  utility.  In  the  Constitution,  the  great  ends  of 
government  were  particularly  enumerated ;  but  all  the  means  were  not, 
nor  could  they  be,  pointed  out,  without  making  the  Constitution  a  com- 
plete code  of  laws.  .  .  .  The  more  important  powers  are  specially 
granted ;  but  the  choice  from  the  known  and  useful  means  of  carrying  the 
power  into  effect,  is  left  to  the  decision  of  the  legislature.  ...  No  power 
could  be  exercised  by  Congress,  if  the  letter  of  the  Constitution  was 
strictly  adhered  to,  and  no  latitude  of  construction  allowed ;  and  all  the 
good  that  might  be  reasonably  expected  from  an  efficient  government 
entirely  frustrated." 

Mr.  Lawrence,  of  New  York,  who  followed  in  the  debate,  said,  "  The 
principles  of  the  government,  and  ends  of  the  Constitution,  were  ex- 
pressed in  its  preamble.  It  is  established  for  the  common  defence  and 
general  welfare.  The  body  of  that  instrument  contained  provisions  the 
best  adapted  to  the  intention  of  those  principles  and  attainment  of  those 
ends.  To  these  ends,  principles,  and  provisions,  Congress  was  to  have 
a  constant  eye ;  and  then,  by  the  sweeping  clause,  they  were  vested  with 
the  power  to  carry  the  ends  into  execution." 

It  has  already  been  shown,  that  the  distinction  of  preamble  and  body  of 
the  Constitution  does  not  exist.  What  Mr.  Madison  calls  the  "  great  ends 
of  government  .  .  .  particularly  enumerated,"  and  Mr.  Lawrence  "  the 
ends  of  the  Constitution,"  are  those  mentioned  in  the  enacting  or  intro- 
ductory clause,  and  are  to  be  attained,  according  to  these  gentlemen, 
through  the  power  of  Congress  to  make  all  laws  necessary  and  proper  for 
these  purposes ;  because  all  the  means  were  not,  and  could  not,  be  pointed 
out.  This  debate  took  place  when  Mr.  Madison  was  a  friend  of  Wash- 
ington, and  a  supporter  of  his  Administration.  The  difference  of  tone  in 
some  of  his  subsequent  writings  will  be  apparent. 

The  power  of  the  government  to  execute  the  Constitution,  at  least  so 
far  as  respects  the  subject  of  personal  liberty  or  slavery,  is  now  [1865] 
effectually  put  at  rest  by  the  thirteenth  Amendment,  abolishing  slavery, 
which  expressly  authorizes  Congress  to  "  enforce  "  that  Article  by  appro- 
priate legislation. 


CHAPTER   XIII. 

LEGISLATIVE  POWERS.  —  GENERAL. 

§  167.  THE  cases  referred  to  in  the  last  two 
sections  being  leading  cases,  both  in  the  legisla- 
tive and  judicial  departments  of  the  government, 
are  deserving  of  particular  attention,  and  ought 
to  be  stated  more  at  length ;  especially  since  they 
were  the  original,  and  remain  the  permanent,  deci- 
sions of  the  right  and  duty  of  Congress  to  make 
laws  for  the  execution  of  the  general  provisions 
and  regulations  of  the  Constitution,  —  really  of 
the  whole  instrument,  as  well  as  of  those  parts 
of  it  more  expressly  assigned  to  them  by  par- 
ticular and  specific  mandates.  When  it  is  said 
Congress  may  "  borrow  money  on  the  credit  of 
the  United  States,"  it  is  well  understood  that 
they  may  borrow  and  promise  to  pay,  "  issue  bills 
of  credit,"  in  the  name  of  the  United  States^  and 
that  such  bills  or  promises  are  legal  and  valid  in 
the  hands  of  any  lawful  owner  thereof;  and  the 
government  acts  accordingly. 
.  §  168.  But  when  it  is  said,  w!Nb  State  shall 
.  .  .  emit  bills  of  credit,"  what  is  understood  by  it, 

[189] 


190  LEGISLATIVE  POWERS.  —  GENERAL. 

and  who  understands  it?  Does  it  mean  that  a 
State  cannot  promise  to  pay  or  make  a  bill  of 
credit, — that  such  a  bill  or  promise  is  illegal  and 
void,  not  transferable  by  delivery  or  otherwise, 
and  gives  no  rights  to  the  lawful  holder?  May 
a  State  borrow  money  and  contract  debt  to  any 
amount,  without  limitation,  of  anybody,  citizen 
or  alien,  for  any  purpose,  lawful  or  unlawful, 
loyal  or  treasonable,  and  then  pay  or  repudiate 
as  they  please?  Is  this  restriction  expected  to 
execute  itself,  or  is  each  State  to  construe  and 
execute  it  or  not,  as  they  please?  It  is  certain 
the  United  States  are  bound  to  "  protect  each  of 
them  against  invasion,"  in  all  the  iniquity  they 
may  be  allowed  to  commit.  Has  the  govern- 
ment, then,  no  rights  or  duties  to  perform,  in 
reference  to  this  and  other  restrictions  under 
which  the  Constitution  has  placed  them? 

§  169.  When  the  Constitution  says,  "  Repre- 
sentatives .  .  .  shall  be  apportioned  among  the 
.  .  .  States  ...  according  to  ...  numbers," 
has  Congress  any  thing  to  say  on  the  subject? 
If  not,  who  has?  When  it  is  required  that  "the 
Judges  in  every  State  shall  be  bound  ...  by 
the  supreme  law  of  the  land,"  has  the  govern- 
ment no  responsibility  in  .the  matter?  The  whole 
matter  amounts  only  to  this :  Is  the  government 
bound  £o  execute  the  Constitution;  and  is  Con- 
gress, as  the  legislative  department  of  the  gov- 
ernment, bound  to  make  all  laws  necessary  and 
proper  for  carrying  it,  and  every  part  of  it,  into 


LEGISLATIVE  POWERS.  — GENERAL.  191 

execution  ?  This  question  was  fairly  raised, 
discussed,  and  settled,  by  the  respective  tribu- 
nals, in  these  two  cases;  and  the  answer  has 
been  recognized  ever  since. 

§  170.  The  first  was  on  the  passage  of  the 
Act  of  June  1,  1789,  the  first  legislative  Act  of 
the  government,  entitled  "  An  Act  to  regulate 
the  time  and  manner  of  administering  certain 
oaths."  The  Constitution1  provides  that  certain 
officers  of  "  the  United  States  and  of  the  several 
States  shall  be  bound  by  oath  or  affirmation  to 
support  this  Constitution."  It  prescribes  no 
oath  in  form;  no  time,  place,  or  manner  of  taking 
it;  no  authority  for  administering  or  recording 
it;  no  mode  of  proving  it;  and  no  penalty  for 
avoiding  or  violating  it.  It  assigns  no  special 
duty  to  the  government,  or  any  department  of  it. 
The  bill  was  reported  in  the  House  by  a  com- 
mittee, of  which  Mr.  Madison  was  a  member, 
with  a  penal  clause;  which  was  afterwards  omit- 
ted on  the  ground  that  taking  the  oath  was  a 
necessary  qualification  for  office,  the  omission  of 
which  would  render  void  all  official  acts  of  the 
officer.  Nevertheless,  the  Act  was  objected  to 
for  want  of  adequate  power  in  Congress. 

§  171.  Mr.  Gerry  said,  "  There  is  no  provision 
for  empowering  the  government  of  the  United 
States,  or  any  officer  or  department  thereof,  to 
pass  a  law  obligatory  on  the  members  of  the 
legislatures  of  the  several  States,  or  other  offi- 

1  Article  VI.,  section  3. 


192  LEGISLATIVE  POWERS.  —  GENERAL. 

cers  thereof,  to  take  this  oath.  This  is  made 
their  duty  by  the  Constitution,  and  no  such  law 
of  Congress  can  add  force  to  the  obligation; 
but  on  the  other  hand,  if  it  is  admitted  that  such 
a  law  is  necessary,  it  tends  to  weaken  the  Con- 
stitution, which  requires  such  aid.  Neither  is 
any  law,  other  than  to  prescribe  the  form  of  the 
the  oath,  necessary  or  proper  to  carry  this  part 
of  the  Constitution  into  effect;  for  the  oath  re- 
quired by  the  Constitution,  being  a  necessary 
qualification  for  the  State  officers  mentioned, 
cannot  be  dispensed  with  by  any  authority  what- 
ever, other  than  the  people  and  the  judicial 
power  of  the  United  States,  extending  to  all 
cases  arising  in  law  or  equity  under  this  Consti- 
tution. The  Judges  of  the  United  States,  who 
are  bound  to  support  the  Constitution,  may,  in 
all  cases  within  their  jurisdiction,  annul  the 
official  acts  of  State  officers,  and  even  the  acts 
of  the  members  of  the  State  legislatures,  if  such 
members  and  officers  were  disqualified  to  do  or 
pass  such  acts,  by  neglecting  or  refusing  to  take 
this  oath." 

§  172.  The  objection  of  w  no  provision  for  em- 
powering the  government,"  &c.,  was  just  as 
applicable  to  the  bill  in  relation  to  United-States 
officers,  as  in  relation  to  State  officers ;  but  it 
was  made  only  in  reference  to  State  officers,  and 
on  the  ground  of  interference  with  State  rights. 
"What  Mr.  Gerry  intended  was  to  deny  the  gen- 
eral power  of  the  government,  as  the  agent  of 


LEGISLATIVE  POWERS.  —  GENERAL.  193 

the  people,  to  administer  and  execute  the  Con- 
stitution,—  the  supreme  law.  It  is  the  same 
objection  afterwards  made  by  Mr.  Madison  and 
Mr.  Monroe  in  their  veto  messages,  as  elsewhere 
cited,  that  they  could  not  find,  in  the  enumerated 
powers,  the  specific  power  to  pass  this  particular 
measure.  Mr.  Madison  reported  and  sustained 
this  bill ;  but  he  afterwards  obtained  more  light 
respecting  State  sovereignty. 

§  173.  The  objection  was  specially  answered 
by  Mr.  Lawrence,  of  ~New  York.  "  Only  a  few 
words  will  be  necessary  to  convince  us  that  Con- 
gress have  this  power.  It  is  declared  by  the 
Constitution,  that  its  ordinances  shall  be  the 
supreme  law  of  the  land.  If  the  Constitution 
is  the  supreme  law  of  the  land,  every  part  of  it 
must  partake  of  this  supremacy;  consequently 
every  general  declaration  it  contains  is  the 
supreme  law.  But  then  these  general  declara- 
tions cannot  be  carried  into  effect  without  par- 
ticular regulations  adapted  to  the  circumstances ; 
these  particular  regulations  are  to  be  made  by 
Congress,  who,  by  the  Constitution,  have  power 
to  make  all  laws  necessary  or  proper  to  carry 
the  declarations  of  the  Constitution  into  effect. 
The  Constitution  likewise  declares  that  the  mem- 
bers of  the  State  legislatures,  and  all  officers, 
executive  and  judicial,  shall  take  an  oath  to  sup- 
port the  Constitution.  This  declaration  is  gen- 
eral; and  it  lies  with  the  supreme  legislature  to 
detail  and  regulate  it." 

13 


194  LEGISLATIVE  POWERS.  — GENERAL. 

§  174.  This  answer  was  substantially  endorsed 
by  Mr.  Bland,  Mr.  Bowdinot,  Mr.  Sherman,  and 
others,  and  was  apparently  satisfactory  to  every- 
body; for  the  bill  was  passed  into  a  law,  so  far 
as  appears,  without  division,  in  both  Houses; 
approved  by  President  Washington;  has  been 
practised  upon  during  the  whole  existence  of  the 
government;  and  still  remains  in  force.  It  has 
not  proved  to  be  adequate  to  all  the  purposes 
for  which  it  was  intended ;  but  it  settled  the 
objection  to  the  power  of  Congress,  and  ought 
to  have  silenced  all  similar  objections  to  the 
execution  of  every  right,  precept,  principle,  or 
requirement,  in  any  part  of  the  Constitution. 

§  175.  The  Other  case  arose  in  the  Supreme 
Court  of  the  United  States,  on  the  Act  of  Feb- 
ruary, 1793,  which  was  enacted  in  order  to  carry 
into  execution  two  provisions  of  the  second  sec- 
tion of  Article  IV.,  relating  to  fugitives  from 
justice  and  from  labor.  These  provisions  rec- 
ognize rights,  and  prescribe  duties  and  prohibi- 
tions to  States,  officers,  and  people  ;  but,  like 
the  above  clause  in  Article  VI.  and  many  other 
parts  of  the  Constitution,  neither  supply  the 
means  of  maintaining  and  enforcing  them,  nor 
allude  to  any  other  authority,  State  or  national, 
to  be  resorted  to  for  the  purpose.  The  Act,  so 
far  as  it  respects  fugitives  from  justice,  has  been 
in  quiet  operation  and  unchallenged,  ever  since 
its  date,  and  is  still  in  force. 

§  176.  But  the  section  relating  to  fugitives 


LEGISLATIVE  POWERS.  —  GENERAL.  195 

from  labor,  though  resting  on  the  same  principle 
so  far  as  the  power  of  Congress  is  concerned, 
was  impeached  for  the  want  of  any  such  power, 
and  brought  under  judicial  examination  in 
Prigg's  case.1  The  Supreme  Court  unanimously 
sustained  the  constitutionality  of  the  Act,  on 
the  express  ground  of  the  duty  of  Congress  to 
legislate  for  the  execution  of  that  part  of  the 
Constitution;  and  a  majority  of  the  Court  held 
further,  that  the  power  was  exclusive  of  any 
State  legislation  on  the  subject. 

§  177.  The  Court  say,  "  It  has  been  argued, 
that  the  Act  of  Congress  is  unconstitutional, 
because  it  does  not  fall  within  the  scope  of  any 
of  the  enumerated  powers  of  legislation  confided 
to  that  body ;  and  therefore  it  is  void.  Stripped 
of  its  artificial  structure,  the  argument  comes  to 
this,  that  although  rights  are  exclusively  secured 
by,  or  duties  exclusively  imposed  upon,  the  na- 
tional government,  yet,  unless  the  power  to 
enforce  these  rights  or  to  execute  these  duties 
can  be  found  among  the  express  powers  of  legis- 
lation enumerated  in  the  Constitution,  they  re- 
main without  any  means  of  giving  them  effect 
by  any  Act  of  Congress,  and  must  operate  solely 
proprio  vigore,  however  defective  may  be  their 
operation,  —  nay,  even  although,  in  a  practical 
sense,  they  may  become  a  nullity  for  the  want  of 
a  proper  remedy  to  enforce  them,  or  to  provide 
against  their  violation.  If  this  be  the  true  inter- 

1  16  Peters'  Rep. 


196  LEGISLATIVE  POWERS.  —  GENERAL. 

pretation  of  the  Constitution,  it  must,  in  a  great 
measure,  fail  to  attain  many  of  its  avowed  and 
positive  objects  as  a  security  of  rights  and  a 
recognition  of  duties.  Such  a  limited  construc- 
tion of  the  Constitution  has  never  yet  been 
adopted  as  correct,  either  in  theory  or  practice. 
~No  one  has  ever  supposed,  that  Congress  could 
constitutionally,  by  its  legislation,  exercise  pow- 
ers or  enact  laws,  beyond  the  powers  delegated 
to  it  by  the  Constitution;  but  it  has,  on  various 
occasions,  exercised  powers  which  were  neces- 
sary and  proper  as  means  to  carry  into  effect 
rights  expressly  given,  or  duties  expressly  en- 
joined, thereby.  The  end  being  required,  it  has 
been  deemed  a  just  and  necessary  implication, 
that  the  means  to  accomplish  it  are  given  also; 
or,  in  other  words,  that  the  power  flows  as  a 
necessary  means  to  accomplish  the  end." 

§  178.  The  Court  proceed  to  cite  several 
familiar  instances  of  legislation  where  precepts 
are  given,  but  no  legislation  expressly  provided 
for;  and  then  add,  "These  cases  are  put  merely 
by  way  of  illustration,  to  show  that  the  rule  of 
interpretation,  insisted  upon  at  the  argument,  is 
quite  too  narrow  to  provide  for  the  ordinary 
exigencies  of  the  national  government,  in  cases 
where  rights  are  intended  to  be  absolutely 
secured,  and  duties  are  positively  enjoined  by 
the  Constitution."  ..."  "We  hold  the  Act  to 
be  clearly  constitutional  in  all  its  leading  provi- 
sions.". .  .  "The  national  government,  in  the 


LEGISLATIVE  POWERS.  — GENERAL.  197 

absence  of  all  positive  provisions  to  the  con- 
trary, is  bound,  through  its  proper  departments, 
legislative,  judicial,  or  executive,  to  carry  into 
effect  all  the  rights  and  duties  imposed  upon  it 
by  the  Constitution."  On  some  of  the  points 
raised  and  argued  in  the  case,  there  was  a  differ- 
ence of  opinion  amon'g  the  Judges.  But  in 
regard  to  this  leading  doctrine  of  the  power  and 
duty  of  Congress,  by  the  necessary  and  appro- 
priate legislation,  to  carry  into  execution  this 
clause  of  the  Constitution  as  well  as  all  the  rest, 
no  difference  of  opinion  was  expressed  or  inti- 
mated by  any  member  of  the  Court. 


CHAPTftK    XIY. 

LEGISLATIVE   POWERS.  —  GENERAL. 

§  179.  THE  2d  and  4th  sections  of  Article 
IV.,  requiring  more  particular  examination,  may 
be  appropriately  considered  here,  under  the  head 
of  the  General  Powers  of  Congress.  The  2d 
section,  in  three  consecutive  sentences,  disposes 
of  three  distinct  and  important  subjects;  giving 
the  supreme  law  on  each,  without  any  details 
of  the  mode  or  means  of  execution,  and  without- 
any  reference  to  future  legislation  for  supplying 
them  in  either  case.  The  first  is,  "  The  citizens 
of  each  State  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  States." 
The  citizens  of  each  State  in  the  Union,  whether 
natural-born  or  naturalized  citizens,  are  ipso 
facto  citizens  of  the  United  States.  Or,  rather, 
every  citizen  of  the  United  States  is,  by  virtue 
of  such  citizenship,  a  citizen  also  of  every  State 
in  the  Union,  and  entitled  to  all  the  privileges 
and  immunities  thereof.  He  is  entitled  to  all  the 
rights  and  privileges  guarantied  or  recognized 
by  the  Constitution,  independent  of  this  clause, 

[198] 


LEGISLATIVE  POWERS.  —  GENEKAL.  199 

as  well  as  by  it;  and,  in  addition  to  them,  he 
is  also  entitled,  by  this  clause,  to  all  the  privileges 
and  immunities  which  may  be  held  or  exercised 
exclusively  under,  and  by  virtue  of,  the  Consti- 
tution and  laws  of  any  State  in  this  Union. 

§  180.  These  are,  at  the  least,  a  right  to  actual 
membership  of  the  community,  whenever  they 
may  choose  to  exercise  it,  and  a  right  to  partici- 
pate in  all  the  benefits  intended  to  be  guarded 
and  secured  thereby.  The  value  of  these,  or 
any  other  rights  under  State  constitutions  and 
laws,  will  surely  not  be  questioned  by  State- 
rights  men;  and,  if  they  exist,  they  appertain, 
by  this  provision  of  the  Constitution,  and  are  of 
equal  value  to  one  citizen  of  the  United  States 
as  to  another,  who  will  put  himself  in  a  position 
to  need  and  to  use  them  on  the  same  terms. 
"Whatever  they  are,  they  are  expressly  granted 
by  this  clause  to  the  citizens  of  every  other 
State ;  and  thus  are  made  constitutional  rights, 
protected  and  secured  by  that  instrument,  and 
placed,  in  the  language  of  Chief  Justice  Taney, 
w  under  the  guardianship  of  the  general  govern- 
ment." These  :?  privileges  and  immunities," 
whether  originally  natural,  personal,  or  common- 
law  rights,  or  civil  and  political  rights,  all  be- 
come, by  this  guaranty,  legal  rights  secured  by 
the  Constitution  to  every  citizen  of  the  United 
States. 

§  181.  The  clause  itself,  however,  supplies  no 
means  for  its  own  execution,  and  directly  in- 


200  LEGISLATIVE   POWERS.  — GENERAL. 

yokes  no  legislative  aid  from  Congress.  For 
more  than  three  quarters  of  a  century,  without 
any  legislation  or  governmental  action  of  any 
sort,  it  stood  a  perfect  dead  letter  in  the  Consti- 
tution; not  only  without  an  attempt  at  enforce- 
ment, but  almost  without  enough  of  sympathy 
for  the  oppressed,  to  raise  a  complaint  on  ac- 
count of  the  want  of  it.  During  this  time,  some 
of  the  States,  directly  in  the  face  of  this  pro- 
vision, actually,  practically,  and  persistently  de- 
nied to  one  half  of  their  own  citizens  any  rights 
whatever,  natural,  civil,  or  political,  under  the 
Constitution  of  the  United  States  or  of  their 
own  State,  by  the  laws  of  God  or  man;  and  sold 
them  in  the  market  like  cattle. 

§  182.  In  one  instance,  an  authorized  agent 
of  a  sister  State  was  sent  into  another,  for  the 
modest  purpose  of  instituting  legal  proceedings 
in  their  own  Courts,  in  order  to  test  the  consti- 
tutional validity  of  some  of  these  violations  of 
right;  but  was  debarred  from  executing  his  mis- 
sion, and  forcibly  expelled  from  the  State,  con- 
trary to  law  and  without  remedy. 

§  183.  But,  on  the  9th  of  April,  1866,  a 
statute  was  enacted  for  executing  this  part  of  the 
Constitution.;  not,  however,  without  running 
the  gauntlet  of  an  executive  veto.  The  veto, 
however,  did  not  deny  the  constitutional  power 
of  Congress  to  legislate  on  the  subject  for  this 
purpose,  but  substantially  admitted  it,  by  prom- 
ising w  cheerfully  to  co-operate  with  Congress 


LEGISLATIVE  POWERS.  —  GENERAL.  201 

in  any  measure  that  may  be  necessary  for  the 
preservation  of  the  civil  rights  of  ...  all  ... 
classes  of  persons  throughout  the  United  States." 
The  President's  objections  were  to  the  details 
of  the  bill.  As  they  were  all  overruled  by  more 
than  a  two-thirds  vote  of  both  Houses  of  Con- 
gress, it  is  unnecessary  to  discuss  them. 

§  184.  The  statute  begins  by  declaring  the 
citizenship  of  "  all  persons  born  in  the  United 
States."  The  truth  of  this  declaration  will 
hardly  be  called  in  question  at  this  late  day.  It 
was  true  before  the  people  became  a  separate 
nation.  It  was  true  by  the  common  law  after- 
wards, and  before  the  Constitution  was  adopted. 
It  was  made  so  true  by  the  terms  of  the  Con- 
stitution itself,  that  it  was  found  necessary,  in 
order  to  diminish  the  eifect  of  the  principle,  to 
insert  an  express  disfranchisement  of  a  portion 
of  the  native  Indians.  So  it  was  true,  indepen- 
dent of  the  statute ;  and,  if  it  had  not  been,  it  is 
made  absolutely  true  by  the  statute.  The  fact 
loses  none  of  its  importance  by  having  been  a 
pre-existing  fact.  The  statute  is  a  distinct  rec- 
ognition and  re-enactment  of  it,  by  the  supreme 
law-making  power  of  the  government,  and  car- 
ries along  with  it  all  the  rights  and  duties  which 
the  fact  includes. 

§  185.  If  a  man  is  a  citizen,  he  has  all  the  at- 
tributes of  a  citizen,  entitled  to  all  the  rights, 
and  liable  to  all  the  duties,  of  citizenship;  and 
the  whole  is  covered  by  the  same  law  that  asserts 


202  LEGISLATIVE  POWERS.  —  GENERAL. 

the  fact.  A  statute  may  enlarge  his  rights,  or 
add  to  his  duties.  It  may  perhaps  diminish 
or  remit  a  portion  of  his  constitutional  duties; 
but  it  cannot  abate  or  abrogate  any  portion  of 
his  constitutional  rights.  This  statute  does  not 
attempt  to  do  either  ;  but  it  specifies  certain 
rights  particularly,  which,  whether  they  are 
broader  or  narrower  than  those  recognized  in 
the  Constitution  as  appertaining  to  all  citizens, 
cannot  at  any  rate  disparage  any  that  may  be 
omitted.  The  statute  expressly  specifies,  that 
he  "  shall  have  the  .  .  .  right,  in  every  State 
and  territory,  ...  to  the  full  and  equal  benefit 
of  all  laws  and  proceedings  for  the  security  of' 
person  and  property ; "  and,  by  declaring  him  to 
be  a  citizen,  it  necessarily  entitles  him  "to  all 
privileges  and  immunities  of  citizens  in  the  seve- 
ral States,"  whether  they  are  guarantied  by  the 
States  themselves  or  by  the  United  States,  and 
whether  they  are  pre-existing  rights  independent 
of  the  statute,  or  rights  now  for  the  first  time 
conferred  by  the  statute. 

§  186.  The  2d  section  of  the  statute  pre- 
scribes the  remedy,  and  is  equally  broad  with  the 
first.  It  extends  "to  the  deprivation  of  any 
right  secured  or  protected  by  this  Act."  !Now, 
whether  all  the  constitutional  rights  of  citizen- 
ship are  granted  by  this"  Act  or  not,  there  is  no 
room  to  doubt  that  they  are  all  intended  to  be 
secured  and  protected  by  it ;  and,  so  far  as  its 
provisions  may  be  effectual  for  the  purposes  in- 


LEGISLATIVE  POWERS.  —  GENERAL.  203 

tended,  they  will  be  so.  "We  do  not  mean  to 
anticipate  any  failure  in  this  respect;  but  if,  in 
the  progress  *of  its  administration,  any  practical 
difficulties  should  be  encountered,  rendering  it 
inadequate  to  the  plenary  accomplishment  of  its 
purposes,  we  trust  the  defect  will  be  promptly 
and  speedily  supplied  by  future  and  more  effi- 
cient legislation,  and  by  a  corresponding  energy 
in  the  execution. 

§  187.  The  second  subject  of  this  2d  sec- 
tion is  Fugitives  from  Justice.  In  regard  to 
them,  the  constitutional  provision  is,  "  A  person 
charged,  in  any  State,  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice  and 
be  found  in  another  State,  shall,  on  demand  of 
the  executive  authority  of  the  State  from  which 
he  fled,  be  delivered  up,  to  be  removed  to  the 
State  having  jurisdiction  of  the  crime."  This 
clause,  like  the  one  preceding  and  succeeding  it, 
as  well  as  many  others,  is  destitute  of  any  special 
provision  authorizing  Congress  to  enact  laws 
for  its  execution;  and  its  execution  was  at  first 
attempted  without  any  legislation  whatever.  In 
1791,  a  free  man  was  seized  in  Pennsylvania, 
where  he  belonged,  carried  into  Virginia,  and 
sold  there  as  a  slave.  The  offender  was  in- 
dicted in  Pennsylvania,  and,  by  the  authority 
of  the  Governor,  demanded  for  trial  and  punish- 
ment from  the  Governor  of  Virginia,  where  he 
was  found,  and  the  delivery  refused.  The  Gov- 
ernor of  Virginia,  by  the  advice  of  his  Attorney- 


204  LEGISLATIVE  POWERS.  —  GENERAL. 

General,  held  that  the  clause  gave  him  no 
authority  to  seize  and  transport  a  man  from 
Virginia  to  Pennsylvania  for  such  a  purpose,  and 
he  had  none  otherwise. 

§  188.  The  Governor  of  Pennsylvania  sent  all 
the  papers  to  the  President,  who  laid  them  be- 
fore Congress,  and  they  thereupon  passed  the 
Act  of  Feb.  12,  1793.  It  is  thereby  enacted, 
that  "  it  shall  be  the  duty  of  the  executive 
authority  of  the  State  or  Territory  to  which  such 
person  shall  have  fled,  to  cause  him  or  her  to  be 
arrested  and  secured,  and  notice  of  the  arrest  to 
be  given  to  the  executive  authority  making  such 
demand,  or  to  the  agent  of  such  authority  ap- 
pointed to  receive  the  fugitive,  and  to  cause  the 
fugitive  to  be  delivered  to  such  agent;"  with 
other  appropriate  provisions  for  his  transporta- 
tion to  the  place  from  whence  he  fled,  and  for 
the  punishment  of  any  forcible  interference 
therewith.  These  provisions  have  been  in  actual 
practical  use  in  every  State  in  the  Union,  from 
the  time  of  their  enactment  till  the  present,  and 
are  still  in  full  force.  So  far  as  is  known,  the 
power  of  Congress  to  make  them  has  never  been 
doubted  or  questioned  by  anybody. 

§  189.  The  phrase,  w  a  person  charged,"  is 
understood  by  the  statute  technically;  and  a  duly 
authenticated  copy  of  the  indictment,  or  affida- 
vit before  a  magistrate,  by  which  the  charge  is 
made,  is  to  be  produced  as  the  foundation  of  the 
demand;  and  then  the  statute  addresses  itself  to 


LEGISLATIVE  POWERS.  —  GENERAL.  205 

the  executive  authority  of  the  State  as  a  part 
of  the  machinery  of  the  government,  and  deals 
with  it,  as  the  Constitution,  does  with  the  States 
themselves,  their  governments,  and  people,  as 
subjects  bound  to  obey,  and,  if  need  be,  to  assist 
in  the  administration  of  the  supreme  law  of  the 
land.  The  existence  and  continuance  of  this 
statute,  on  a  subject  in  constant  use,  and  with 
universal  acquiescence,  in  addition  to  many 
others  elsewhere  cited  of  a  similar  character, 
affords  the  strongest  possible  evidence  of  the 
general  understanding,  that  the  power  and  duty 
of  Congress  authorize  and  require  them  to  legis- 
late for  the  enforcement  and  execution  of  every 
part  of  the  Constitution,  and  particularly  of 
every  precept,  right,  principle,  or  prohibition  it 
contains.  There  never  has  been  any  question  in 
regard  to  their  duty  to  legislate  for  the  execu- 
tion of  this  provision  of  the  Constitution,  nor  in 
regard  to  the  validity  and  constitutionality  of 
the  provisions  of  this  particular  statute  for  that 
purpose. 


CHAPTER    XY. 

LEGISLATIVE  POWEKS.  —  GENEKAL. 

§  190.  THE  third  and  last  subject  of  this  sec- 
ond section  is  Fugitives  from  Labor.  The  pro- 
vision is  of  the  same  character  with  the  two 
preceding  ones,  in  respect  of  means  of  execution 
and  invocation  of  special  legislative  power.  It 
is  in  these  words :  "  ]STo  person  held  to  service 
or  labor  in  one  State,  under  the  laws  thereof, 
escaping  to  another,  shall,  in  consequence  of  any 
law  or  regulation  therein,  be  discharged  from 
such  service  or  labor,  but  shall  be  delivered  up, 
on  claim  of  the  party  to  whom  such  service  or 
labor  may  be  due." 

§  191.  The  Convention  had  been  engaged, 
from  May  to  August,  in  discussing  and  amend- 
ing the  Virginia  Plan.  They  had  successfully 
encountered  and  settled  the  vexed  questions,  be- 
tween a  government  proper  of  the  people,  and 
a  confederation  or  league  of  States;  the  relative 
power  or  position  of  the  individual. States  in  the 
new  government;  and  the  rule  of  apportionment 
of  representation  and  direct  taxation,  by  num- 

[206] 


LEGISLATIVE  POWERS.  —  GENERAL.  20J 

bers,  without  regard  to  race,  color,  or  descent. 
But  the  Virginia  Plan  introduced  no  subject  that 
necessarily  involved  the  consideration  of  slavery; 
so  that,  thus  far,  slavery,  whether  by  law  or 
against  law,  was  unknown  to  the  Constitution. 
The  original  fifteen  Resolutions,  introduced  by 
Mr.  Randolph,  had  expanded,  under  the  hands 
of  the  Convention,  to  twenty-three  distinct  prop- 
ositions, which,  at  the  end  of  that  time,  went 
into  the  hands  of  the  Committee  of  Detail,  to 
w  report  a  Constitution  conformable  thereto." 

§  192.  The  South-Carolina  Plan  also,  without 
any  examination  or  sanction  of  the  Convention, 
and  without  instructions,  went  into  the  hands  of 
the  same  committee,  of  which  Mr.  Rutledge, 
of  South  Carolina,  was  chairman.  The  South- 
Carolina  Plan  contained  provisions  limiting  the 
commercial  power,  prohibiting  the  taxation  of 
persons  or  exports,  and  requiring  the  rendition 
of  fugitives,  —  all  subjects  looking  directly  to 
the  condition  of  slavery,  the  proceeds  of  slave 
labor,  and  the  continuance  of  the  slave-trade. 
None  of  these  subjects  had  been  discussed  in 
the  Convention ;  but,  the  day  before  the  com- 
mittee were  appointed,  General  Pinckney  fore- 
warned the  Convention,  that,  if  the  committee 
should  fail  to  provide  security  against  the  eman- 
cipation of  slaves  and  the  taxation  of  exports, 
he  should  oppose  their  report. 

§  193.  The  Convention  had  the  benefit  of  this 
hint  in  the  selection  of  their  committee,  and  the 


208  LEGISLATIVE  POWERS.  —  GENERAL. 

committee  had  it  also  in  the  prosecution  of  their 
labors.  Their  draft  of  a  Constitution  followed 
the  form  of  the  South-Carolina  Plan  entirely, 
and,  in  most  respects,  the  substance  also;  inter- 
weaving or  modifying  it  by  the  principles  already 
sanctioned  by  the  Convention,  and  others  taken 
either  from  the  Articles  of  Confederation  or 
other  plans  before  them,  or  originated  by  them- 
selves. This  draft  became  the  basis  of  all  the 
subsequent  proceedings  of  the  Convention.  The 
subjects  above  mentioned,  bearing  on  the  inter- 
ests of  slavery,  were  dealt  with  by  the  Com- 
mittee of  Detail  as  follows :  — 

§  194.  In  the  South-  Carolina  Plan,  w  No  tax 
shall  be  laid  on  articles  exported  from  the 
States;  nor  capitation  tax,  but  in  proportion  to 
the  census  before  directed."  — "  All  laws  regu- 
lating commerce  shall  require  the  assent  of  two- 
thirds  of  the  members  present  in  each  House." 
— "  Any  person  charged  with  crimes  in  any 
State,  fleeing  from  justice  to  another,  shall,  on 
demand  of  the  executive  of  the  State  from  which 
he  fled,  be  delivered  up,  and  removed  to  the  State 
having  jurisdiction  of  the  offence." 

§  195.  In  the  Report  of  the  Committee  of  De- 
tail, w  No  tax  or  duty  shall  be  laid  by  the  legis- 
lature on  articles  exported  from  any  State,  nor 
on  the  migration  or  importation  of  such  per- 
sons as  the  several  States  shall  think  proper  to 
admit;  nor  shall  such  migration  or  importation 
be  prohibited." — "  No  capitation  tax  shall  be 


LEGISLATIVE  POWERS.  —  GENERAL.  209 

laid,  unless  in  proportion  to  the  census  herein- 
before directed  to  be  taken."  —  "No  navigation 
Act  shall  be  passed  without  the  assent  of  two- 
thirds  of  the  members  present  in  each  House." 
—  "Any  person  charged  with  treason,  felony, 
or  high  misdemeanor,  in  any  State,  who  shall 
flee  from  justice,  and  shall  be  found  in  any  other 
State,  shall,  on  demand  of  the  executive  power 
of  the  State  from  which  he  fled,  be  delivered  up, 
and  removed  to  the  State  having  jurisdiction  of 
the  offence." 

§  196.  In  regard  to  the  items  of  taxation  on 
persons  and  exports,  the  Committee  adopted  the 
views  of  South  Carolina,  which  now  form  a  part 
of  the  Constitution.1  As  to  commercial  regula- 
tions, the  Committee  modified  the  South-Carolina 
claim  to  a  positive  prohibition  of  laws  restraining 
"the  migration  or  importation  of  persons,"  by 
taxation  or  otherwise ;  and  requiring  a  two-thirds 
vote  for  navigation  laws.  The  difficulty  on  this 
subject  was  afterwards  adjusted  in  the  Conven- 
tion, by  striking  out  the  restriction  on  navigation 
laws,  and  limiting  the  prohibition  in  regard  to 
the  importation  of  persons  to  twenty  years,  with 
a  ten-dollar  tax,  as  in  Article  I.,  section  9. 

§  197.  The  South-Carolina  claim,  in  regard 
to  rendition  or  extradition  of  persons  "  charged 
with  crimes  in  any  State,"  so  far  as  it  related  to 
the  interests  of  slavery,  resulted  in  the  last  clause 
of  Article  IV.,  section  2,  now  under  considera- 

1  Article  I.,  section  9,'cl.  4  and  5.  , 

14 


210  LEGISLATIVE  POWERS.  —  GENERAL. 

tion.  The  terms  of  the  provision  in  their  Plan 
were  studiously  broad,  so  as  to  include  any  thing 
that  any  State  might  choose  to  call  a  crime;  not 
limited  to  offences  mala  per  se,  but  extending  to 
mala  proliibita  also ;  so  that,  by  virtue  of  it,  they 
could  as  well  reclaim  a  runaway  slave  as  an  ab- 
sconding murderer. 

§  198.  The  Committee  of  Detail,  for  reasons 
which  are  altogether  inexplicable,  considering 
the  manner  in  which  they  treated  the  rest  of  the 
above  series,  changed  the  phraseology  of  the 
clause  from  "  charged  with  crimes  "  to  "  charged 
with  treason,  felony,  or  high  misdemeanor ; " 
thus  limiting  its  operation  to  offences  mala  per 
se  at  least,  and  leaving  out  all  mala  proliibita,  or 
mere  nominal  and  artificial  crimes.  It  was  at 
first  attempted  to  evade  the  effect  of  this  change, 
by  striking  out  the  words  "  high  misdemeanor," 
and  inserting  the  words  "  other  crime,"  on  the 
ground  that  the  former  words  had  "  a  technical 
meaning  too  limited  .  .  .to  comprehend  all  pro- 
per cases."  But  it  was  soon  perceived  that  this 
could  not  answer  the  purpose.  :?  Treason,  fel- 
ony, or  other  crime  "  might  embrace  other  crimes 
of  a  nature  similar  to  those  named,  but  could  not, 
on  the  principles  of  law,  be  extended  to  minor 
offences,  of  a  totally  different  character  and 
grade. 

§  199.  Whereupon  South  Carolina  moved  di- 
rectly to  require  "  fugitive  slaves  and  servants 
to  be  delivered  up  like  criminals."  This  was 


LEGISLATIVE  POWERS.  —  GENERAL.  211 

resisted,  on  the  ground  that  it  must  then  be  done 
at  the  public  expense,  and  there  was  no  more 
reason  for  the  public  being  called  upon  to  seize 
and  surrender  a  runaway  slave  or  servant,  than 
a  runaway  horse.  It  would  also  have  been  a 
direct  recognition  and  legalization  of  slavery  or 
property  in  man,  by  putting  it  into  the  Consti- 
tution eo  nomine.  The  proposition  was  then 
withdrawn,  in  order  to  prepare  a  particular  pro- 
vision, independent  of  the  clause  regarding  fugi- 
tives from  justice. 

§  200.  This  was  presented  and  adopted  the 
next  day,  Aug.  29,  in  the  following  form:  "If 
any  person  bound  to  service  or  labor  in  any  of 
the  United  States  shall  escape  into  another  State, 
he  or  she  shall  not  be  discharged  from  such  ser- 
vice or  labor  in  consequence  of  any  regulations 
subsisting  in  the  State  to  which  they  escape, 
but  shall  be  delivered  up  to  the  person  justly 
claiming  their  service  or  labor."  The  words 
"  bound  to  service  or  labor,"  by  which  they  in- 
tended to  include  slaves,  inter  alios,  were  used 
with  reference  to  the  ordinance  of  July  13,  1787, 
which  was  passed  by  Congress  near  seven  weeks 
before,  the  words  of  which,  describing  a  subject 
for  reclamation,  were  w  any  person  .  .  .  from 
whom  labor  or  service  is  lawfully  claimed."  It 
has  been  argued,  that  this  similarity  of  action  by 
Congress  and  the  Convention,  so  nearly  simul- 
taneous and  unanimous  in  both,  carries  evidence 
of  consent  and  compromise  among  the  different 


212  LEGISLATIVE  POWEKS.  —  GENERAL. 

\ 

parties  in  both  bodies.  But,  if  that  was  the  case, 
why  the  attempt  first  made  to  smuggle  through 
the  extradition  of  a  runaway  slave,  under  the 
name  of  a  "person  charged  with  crimes;"  and, 
failing  this,  then  |the  bold  and  defiant  proposi- 
tion to  write  SLAVERY  bodily,  on  the  face  of  the 
Constitution? 

§  201.  Or  rather,  why  not  take  the  provision 
itself,  supposed  to  have  been  agreed  upon,  and 
transfer  it  to  the  Constitution,  in  the  very  terms 
of  the  ordinance?  But,  after  the  failure  of  the 
first  two  attempts,  and  an  adjournment  for  prepa- 
ration, an  entirely  new  proposition  is  introduced, 
as  above.  It  avoided  the  objection,  that  the 
reclamation  must  be  made  by  the  executive 
authority  of  the  State  from  which  the  escape 
was  made,  and  at  the  public  expense;  and  did 
not  sanction  slavery,  by  a  recognition  of  it  as  a 
legal  or  constitutional  bond  to  service  or  labor. 
It  still  left  the  legality  of  the  bond,  the  fact  of 
the  escape,  and  the  justice  of  the  claim,  —  that 
is,  the  title  of  the  claimant,  —  as  traversable 
facts,  to  be  inquired  into  and  decided,  wherever 
it  should  be  attempted  to  enforce  the  claim. 

§  202.  In  this  condition,  ten  days  afterwards, 
it  went  into  the  hands  of  the  Committee  of 
Revision,  who  reported  it  in  a  new  draft,  Sept. 
12,  as  follows :  "  No  person  legally  held  to  ser- 
vice or  labor  in  one  State,  escaping  into  another, 
shall,  in  consequence  of  regulations  subsisting 
therein,  be  discharged  from  such  service  or  labor, 


LEGISLATIVE  POWERS.  —  GENERAL.  213 

but  shall  be  delivered  up,  on  claim  of  the  party 
to  whom  such  service  or  labor  may  be  due." 
This  still  left  the  three  main  facts  above  men- 
tioned most  palpably  open  to  inquiry:  1.  The 
constitutional  legality  of  the  original  holding  to 
service,  whether  by  bond,  apprenticeship,  mar- 
riage, slavery,  or  otherwise;  2d,  The  escape,  or 
wilful  and  unjustifiable  abrasion  of  legal  duty; 
and,  3d,  The  valid  title  of  the  present  claimant. 

§  203.  All  these  inconvenient  and  disagreeable 
inquiries  it  was  the  distinct  purpose  of  the  slave- 
holders to  forestall.  Accordingly,  the  clause  was 
subjected  to  further  alterations  in  the  Conven- 
tion, from  which  it  came  out,  not  till  the  day 
of  the  final  engrossment  of  the  Constitution,  in 
the  shape  in  which  it  now  stands.  It  had  before 
become  known  and  acquiesced  in,  as  the  settled 
determination  of  the  Convention,  not  to  legalize 
or  recognize  slavery,  or  the  right  of  property 
in  man,  in  any  form.  Only  two  days  before  this 
final  disposal  of  the  subject,  the  word  service 
had  been  substituted  for  servitude  in  the  2d  sec- 
tion, on  this  account.  And  this  by  a  unanimous 
vote. 

§  204.  The  phrase  held  to  service,  or  'bound  to 
service,  being  identical  and  used  indiscriminately, 
is  elsewhere  in  the  Constitution  expressly  ap- 
plied to  freemen,1  and,  of  course,  could  not  mean 
slaves,  in  distinction  from  freemen.  In  every 

1  "Free  persons,  including  those  bound  to  service  for  a  term  of 
years."  —  Article  I.,  section  2,  cl.  3. 


214  LEGISLATIVE  POWERS.  —  GENERAL. 

instance  where  words  or  phrases  used  in  the 
Constitution  are  claimed  to  mean  slaves,  they 
certainly  include,  and  were  intended  to  apply  to, 
those  who  were  not  slaves;  and  so  are  not  iden- 
tical, equivalent,  appropriate,  or  adequate  to 
designate  that  or  any  other  particular  class  ex- 
clusively. They  cannot  show  that  any  such 
class  was  in  fact  known  even  to  exist;  much  less 
can  they  be  adduced  to  prove  that  such  a  status 
was  admitted  to  be  lawful,  or  constitutionally 
approved  or  sanctioned. 

§  205.  The  first  time  such  a  phrase  is  used  hi 
the  Constitution  is  in  section  2  of  Article  I., 
where  they  are  w  oilier  persons "  than  freemen, 
without  defining  freemen,  whether  they  are  citi- 
zens or  aliens,  natural-born  or  legally  admitted, 
or  otherwise  constituted  such,  but  expressly  in- 
cluding a  portion  of  those  "  bound  to  service;  " 
so  that  bound  to  service  cannot  mean  slaves,  for  a 
portion  of  them  are  free;  and  other  persons  can- 
not mean  slaves,  for  a  portion  of  them  are  bound 
to  service  and  freemen.  These  other  persons  are, 
at  the  same  time,  a  part  of  the  "  people  of  the 
State,"  to  whom  the  representation  is  assigned, 
and  on  whose  numbers  it  is  apportioned. 

§  206.  In  the  next  instance,1  they  are  called 
"  such  persons  "  as  any  of  the  States  may  think 
proper  to  admit,  without  regard  to  status,  or  any 
other  quality;  and  there  can  be  no  more  ground 
for  claiming  that  they  mean  slaves  exclusively, 

1  Article  I.,  section  9. 


LEGISLATIVE  POWERS.  —  GENERAL.  215 

than  that  they  mean  men,  women,  children,  or 
adults,  or  any  other  description  of  persons.  In 
the  last  instance,  they  are  "  persons  held  to  ser- 
vice" by  local  law;  which  of  course  must  be  law 
in  conformity  to,  or  compatible  with,  the  Consti- 
tution, or  it  can  be  no  law.  So  that  all  of  them 
leave  the  question  of  a  constitutional  sanction  of 
slavery  just  where  they  found  it,  without  any 
affirmative  answer.  "  Held  to  service  "  is  also 
spoken  of  as  a  debt  due;  which  cannot  apply  to  a 
slave,  who,  having-  no  freedom  or  will,  can  con- 
tract no  obligation,  or  owe  any  thing;  and,  hav- 
ing no  rights,  can  discharge  no  debts. 

§  207.  The  obvious  intention  of  the  studied 
phraseology  in  which  the  clause  now  appears,  — 
originally  made,  then  altered  and  re-altered,  by 
the  slaveholders  themselves,  —  was  to  place  the 
whole  subject  de  hors  the  Constitution  entirely, 
and  leave  it  in  the  hands  of  the  local  authorities 
only.  If  held  to  service  did  not  mean  slave, 
they  could  make  slave  mean  held  to  service;  and 
they  did.  As  they  made  the  law  themselves,  they 
could  make  such  service  legal,  under  what  name 
they  pleased.  As  the  escape  was  an  oifence 
against  local  law,  it  must  be  judged  of  and  de- 
cided by  local  law.  The  State  ad  quern  was 
prohibited  from  making  any  discharge,  and  the 
party  pursued  was  to  be  delivered  up  to  his  pur- 
suers, armed  with  the  same  local  law  of  the 
slaveholders,  by  anybody  and  everybody  to  whom 
he  might  resort  for  protection.  "We  have  here 


216  LEGISLATIVE  POWERS.  —  GENERAL. 

the  foundation  of  the  claim  of  which  we  have 
all  heard  so  much,  and  so  long,  and  so  con- 
stantly, that  SLAVERY,  not  holding  to  service,  is 
a  subject  that  belongs  exclusively  to  the  juris- 
diction of  the  States;  and  that  the  general  gov- 
ernment has  no  right  even  to  consider  it,  or  do 
any  thing  about  it. 

§  203.  But  they  soon  discovered  that  in  all 
this  there  was  manifest  error.  The  provision 
was  worth  nothing  to  the  slaveholders,  and  they 
found  that  they  could  turn  it  to  no  practical  ac- 
count, without  the  use  of  a  magistracy  and  legal 
authority  in  the  free  States;  and  that  a  free-State 
magistracy  would  not  be  governed  by  slave  laws. 
The  consequence  was,  that  they  lost  no  time  in 
making  the  next  important  discovery,  which  was, 
that  the  United  States  had  something  to  do  with 
it;  and,  inasmuch  as  the  provision  was  in  the 
Constitution,  it  was  the  supreme  law  of  the  land; 
and  as  such  it  was  the  duty  of  the  government 
to  construe  and  administer  it.  So  they  called 
upon  Congress  to  legislate  on  the  subject.  The 
slaveholders  could  not  manage  the  free-State 
magistrates  ;  but  they  could  manage  Congress, 
and  they  immediately  passed  the  Act  of  Feb.  12, 
1793,  to  carry  out  their  wishes. 

§  209.  We  have  seen  that  before  this  time 
Congress  had  substantially  determined  to  do 
nothing  for  the  amelioration  of  the  condition  of 
the  slaves  in  any  of  the  States,  or  even  to  receive 
any  petition  from  them.  They  were  now  boldly 


LEGISLATIVE  POWERS.  —  GENEEAL.  217 

called  upon  by  the  masters  to  assist  in  the  op- 
pression of  that  feeble  race;  and  they  yielded  a 
ready  assent.  They  did  not,  however,  by  this 
act,  undertake  to  say  that  a  person  involuntarily 
and  forcibly  held  as  a  slave  under  an  unconsti- 
tutional State  law,  was  "  a  person  [lawfully]  held 
to  service  or  labor,"  or  from  whom  "  service  or 
labor  "  was  legally  "  due,"  within  the  meaning  of 
the  Constitution;  or  even  that  this  clause  of  the 
Constitution,  or  any  other,  recognized  or  applied 
to  slavery  at  all.  It  is  worthy  of  note,  that  this 
statute  is  expressly  made  applicable  to  the  North- 
west Territory,  where  slavery  was  impossible, 
having  been  prohibited  by  Congress  itself,  in  re- 
enacting  the  Ordinance  of  1787. 

§  210.  They  first  followed  the  words  of  the 
Constitution,  "  held  to  labor  "  (leaving  out  ser- 
vice) ,  "  escape,"  and  w  due,"  and  left  their  legal 
meaning  and  constitutional  application,  the  fact 
and  the  law  of  the  whole  case,  to  the  slaveholder 
himself;  to  be  decided,  if  he  pleased,  by  his  own 
or  any  other  affidavit,  in  the  same  loose  and 
general  phrase,  before  a  magistrate  selected  and 
paid  by  himself;  and  without  saving  even  the 
poor  right  of  appeal  to  the  miserable  victim,  who 
could  have  no  means  to  resist  or  object  to  any 
thing.  But,  lest  by  possibility  he  might  still 
have  the  ghost  of  a  chance  to  escape  from  a 
decision  so  made,  any  person  who  should  obstruct 
its  execution,  or  conceal  or  harbor,  or  probably 
feed  him,  —  for  he  could  hardly  be  fed  without 


218  LEGISLATIVE  POWERS.  — GENERAL. 

being  harbored  somewhere,  —  shall  forfeit  five 
-hundred  dollars  to  the  slave-catcher. 

§  211.  It  might  have  remained  doubtful  to 
this  day,  whether  human  ingenuity  could  concoct 
a  statute  more  inhuman,  barbarous,  and  uncon- 
scionable than  this,  had  it  not  been  for  the  addi- 
tional provisions  of  the  Act  of  1850.  Under 
such  circumstances,  it  is  not  difficult  to  see  how 
the  words  of  the  Constitution,  "  person  held  to 
service,"  and  from  whom  "  such  service  may  be 
due,"  —  which  had  been  carefully  selected  and 
adopted  jbecause  they  did  not  mean  "  slave,"  and 
could  not  be  applied  to  one  held  only  by  force 
and  without  right,  —  had,  without  any  judicial 
examination  whatever,  been  made  to  mean  just 
exactly  "  slave,"  and  nothing  else. 

§  212.  It  was  because  one  party  only  was 
permitted  to  have  any  voice  in  the  matter,  and 
he  was  allowed  to  make  the  construction  to  suit' 
his  own  interest  and  pleasure.  He  did  this 
so  effectually,  that,  at  the  end  of  half  a  century, 
in  1842,  when  the  words,  for  the  first  and  only 
time,  came  under  judicial  cognizance,  in  Prigg's 
case,  their  true  construction  and  real  meaning, 
which  was  the  only  constitutional  question  worth 
considering  presented  by  the  case,  was  so  com- 
pletely lost  sight  of,  as  not  to  be  mooted,  or  even 
alluded  to,  by  the  Court  or  counsel,  during  the 
whole  argument.  Judge  Story,  in  delivering 
the  opinion  of  the  Court  in  that  case,  says,  "  It 
is  well  known,  that  the  object  of  this  clause 


LEGISLATIVE  POWERS.  —  GENERAL.  219 

was  to  secure  to  the  citizens  of  the  slaveholding 
States  the  complete  right  and  title  of  ownership 
in  their  slaves,  as  property,  in  every  State  in  the 
Union ; "  and  he  takes  this  as  the  foundation  of 
his  opinion  in  the  case.  INbw,  if  any  thing  is, 
or  ever  can  be,  well  known,  in  regard  to  the  in- 
tentions of  that  Convention,  it  is  that  they  were 
determined  to  say  nothing  about  the  right  of 
property  in  a  slave,  and  did  say  nothing  about 
it;  and  that  the  circuitous  phraseology  of  this 
clause  was  invented  by  the  slaveholders,  because 
they  could  not  overcome  that  determination,  on 
purpose  to  evade  it;  which  they  did  effectually. 

§  213.  So  the  clause  stood  on  the  slaveholders' 
construction  only,  not  even  endorsed  by  Con- 
gress, till  the  repeal  of  the  Missouri  Compromise, 
the  Dred-Scot  decision,  and  the  invasion  of 
Kansas,  so  turned  their  heads,  as  to  induce  a 
belief  that  the  government  was  so  weak,  and  its 
friends  so  indifferent  or  inefficient,  that  they 
could-  cancel  and  destroy  the  Constitution,  and 
incontinently  sweep  the  whole  government  by 
the  board  with  a  besom.  Then  they  rushed 
directly  into  rebellion,  leaving  the  government 
to  the  sole  care  of  its  friends;  when  all  the  laws 
for  construing  or  executing  this  part  of  the  Con- 
stitution, together  with  slavery  itself,  rebellion 
and  all  were  speedily  squelched  together. 


CHAPTER    XYI. 

LEGISLATIVE  POWERS.  —  GENERAL. 

§  214.  THE  4th  section  of  this  fourth  Article  is 
another  instance  of  most  important  powers,  which 
must  be  executed  by  Congress,  and  cannot  be 
done  without  them,  and  yet  in  which  there  is  no 
express  call  made  upon  them  to  do  any  thing. 
>x  The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  republican  form  of  govern- 
ment, and  shall  protect  each  of  them  against 
invasion;  and,  on  application  of  the  legislature, 
or  of  the  executive  when  the  legislature  cannot 
be  convened,  against  domestic  violence."  The 
duty  here  enjoined  is  upon  the  United  States, 
the  whole  government,  like  the  duty  to  execute 
the  Constitution.  But  that  portion  of  it  which 
requires  or  admits  legislation  necessarily  de- 
volves upon  Congress,  as  the  legislative  depart- 
ment, and  having  all  its  legislative  power.  It 
necessarily  belongs  to  Congress  also ;  because,  by 
special  and  specific  provisions,  Congress  is  made 
expressly  the  depository  of  certain  powers,  abso- 
lutely essential  to  be  brought  into  exercise,  in 
the  performance  of  the  duties  here  enjoined. 

[220] 


LEGISLATIVE  POWERS.  —  GENEEAL.  221 

§  215.  For  instance,  the  power  to  provide  for 
the  common  defence,  and  to  draw  out  and  con- 
trol all  the  pecuniary  resources  and  the  physical 
power  of  the  nation.  Without  these,  this  clause 
never  could  be  executed;  and  they  are  in  the 
hands  of  Congress  alone.  Without  entering  into 
any  minute  criticism  on  the  word  "guarantee," 
it  may  be  safely  stated,  that  the  clause  prescribes 
a  republican  government  for  all  the  States,  pro- 
tection against  hostile  invasion,  and,  on  request, 
against  domestic  violence.  In  regard  to  the 
first,  a  republican  government  for  the  States, 
the  duty  of  the  general  government  to  furnish 
it,  under  any  circumstances,  necessarily  implies 
a  duty  on  all  the  States  to  have  such  a  govern- 
ment. Every  State  must  have  a  republican  gov- 
ernment; and,  if  at  any  time  a  State  is  destitute 
of  one,  the  general  government  is  bound  to  pro- 
vide it. 

§  216.  The  first  requisite  to  the  performance 
of  the  duty  is  to  understand  it,  —  to  know  what 
it  is.  The  Constitution  gives  no  definition  of  it, 
and  refers  to  no  standard;  and  there  is  no  stand- 
ard of  adequate  authority  to  bind  the  govern- 
ment on  the  subject.  With  such  lights  as  the 
principles  of  moral  and  political  law  afford,  the 
government  must  decide  for  themselves  what 
the  Constitution  intends  by  a  republican  form  of 
government.  What  are  its  fundamental  requi- 
sites, its  constituent  ingredients,  its  essential 
characteristics,  that  distinguish  it  from  any  and 


222  LEGISLATIVE  POWERS.  —  GENERAL. 

all  other  forms  of  government?  Without  some 
knowledge  on  these  points,  an  intelligent  opinion 
cannot  be  formed  in  regard  to  any  government, 
whether  it  is  republican  or  otherwise.  At  pres- 
ent, however,  our  government  have  prescribed 
no  rule  of  decision;  and  the  principles,  if  there 
are  any,  on  which  particular  cases  are  practically 
decided,  for  the  time  being,  are  vibratory  and 
uncertain.  Still  some  things  in  regard  to  them 
would  probably  be  universally  admitted. 

§  217.  It  is  not  that  the  sovereignty,  the  ulti- 
mate right  and  power  to  control  in  the  last 
resort,  resides  in  the  people;  for  this  is  equally 
true  of  all  governments.  It  is  not  that  the  gov- 
ernment was  originally  established  or  ordained 
by  the  voluntary  agency  of  the  people  ;  for  a  re- 
public may  grow  up  on  precedent,  or  be  founded 
by  the  decree  of  a  despot,  as  well  as  any  other 
government.  It  is  not  that  a  portion  of  the 
regular  administrative  authority  remains  with 
the  people,  to  be  exercised  by  suffrage,  the  only 
way  in  which  they  ever  can  exercise  sovereignty ; 
because  the  same  may  be  done  in  all  other  gov- 
ernments. Every  despot  in  Europe  has  his  Par- 
liament. ]STor  is  it  that  in  such  cases  a  large 
proportion,  or  even  the  whole,  of  the  people 
participate  in  the  suffrage;  for  a  despot  is  not 
unlikely,  on  occasions,  to  desire,  and  even  de- 
mand, universal  suffrage.  Neither  the  frequency 
with  which  the  suffrage  may  be  exercised,  the 
importance  of  the  particular  subjects  on  which 


LEGISLATIVE   POWERS.  —  GENERAL.  223 

it  is  called  for,  nor  the  proportion  of  the  whole 
people  who  may  participate  in  it,  nor  even  the 
weight  of  consideration  which  may  be  allowed  to 
it,  will  determine  the  character  of  the  govern- 
ment. Napoleon  might  call  for  the  suffrages  of 
all  France,  every  month  in  the  year,  in  regard  to 
every  important  measure  by  which  he  controls 
Europe,  and  conform  to  the  result,  and  yet  keep 
his  government  as  far  removed  from  republican- 
ism as  it  is  at  present. 

§  218.  A  monarch  may  respect  public  opinion, 
and  govern  for  the  public  good.  So  may  the 
nobles,  or  the  few.  But  the  principle  of  a  mon- 
ocracy is  mon  droit.  That  of  an  aristocracy  or 
oligarchy  is  the  same,  only  in  a  diluted  form. 
The  principle  of  republicanism  is  the  equal  right 
of  the  people,  the  citizens,  all  the  members  of 
the  body  politic.  In  theory  it  is  the  govern- 
ment of  public  opinion;  the  public  being  its  own 
members  and  subjects,  and  the  opinion  being 
their  own  intelligent  and  well-considered  judg- 
ment in  regard  to  the  requirements  of  their  own 
best  good  and  permanent  interest.  The  excel- 
lence of  a  particular  government  consists  in  its 
adequacy  to  obtain  the  formation  and  expression 
of  such  an  opinion.  The  essence  of  its  repub- 
licanism consists  in  the  fitness  of  its  means  for 
understanding  and  administering  that  opinion, 
and  the  practical  efficiency  with  which  it  holds 
its  agents  to  their  responsibility  for  doing  so. 

§  219.  It  is  obvious  that  no  reliance  can  be 


224:  LEGISLATIVE  POWERS.  —  GENERAL. 

placed  by  any  government  on  the  permanent 
support  of  such  a  public  opinion  as  republican- 
ism demands,  otherwise  than  by  a  strict  adhe- 
rence to  the  laws  of  God  and  eternal  justice,  the 
equal  and  inalienable  rights  of  man.  Hence 
republicanism  is  founded  on  those  principles; 
and  fidelity  to  them  is  essential  to  the  security 
of  its  own  existence.  Election  and  representa- 
tion are  the  means  by  which  the  people  primarily 
initiate  and  direct  measures;  and  the  vicarious 
character,  and  consequent  responsibleness,  of  the 
government  are  the  means  through  which  the 
people  obtain  the  anticipation  and  enforcement 
of  their  future  claims.  The  fundamental  prin- 
ciples of  right  and  justice  for  the  government, 
the  representative  character  of  the  governors, 
and  their  practical  responsibleness  to  the  gov- 
erned, are  the  essentials  of  republicanism:  the 
details  may  be  variously  arranged. 

§  220.  The  best  model  of  such  a  republican 
government  is  the  Constitution  of  the  United 
States.1  But  if  it  was  not  in  all  respects  abso- 
lutely the  best,  still  it  would  be  the  most  author- 
itative one  for  all  the  subordinate  governments 
of  the  country;  because  it  is  the  form  actually 
adopted  by  all  the  people  for  their  own  supreme 

1  "  The  Constitution  is  strictly  republican ;  for  all  its  powers  are  de- 
rived, directly  or  indirectly,  from  the  people,  and  are  administered  by 
functionaries  holding  their  offices  during  pleasure,  or  for  a  limited  period, 
or  during  good  behavior."  —  1  Story's  Com.,  269 ;  Federalist,  No.  89. 

"  The  foundation  of  ...  liberty,  and  of  all  free  government,  is  a  right 
in  the  people  to  participate  in  their  legislative  council."  —  Declaration  of 
Rights,  1st  Congress,  Oct.  14,  1774. 


126 

LEGISLATIVE  POWERS.  —  GENERAL.  225 

government.  The  Constitution  of  the  United 
States  presupposes  the  existence  of  a  well-in- 
formed public  opinion,  for  it  is  predicated  upon 
it,  and  ordained  by  it :  "  We,  the  people,  estab- 
lish" it.  The  people  forcibly  cast  off  their  old 
government,  asserted  their  independent  rights, 
and  established  a  new  one. 

§  221.  But  if  it  had  been  given  by  the  king's 
charter,  and  the  independence  voluntarily  grant- 
ed, it  would  have  been  none  the  less  republican. 
Its  character  depends  upon  its  fundamental  prin- 
ciples, and  the  manner  in  which  they  are  prac- 
tically sustained  and  administered,  rather  than 
on  the  manner  in  which  it  was  formed.  The 
mode  in  which  our  Constitution  endeavors  to 
forestall  a  conformity  to  public  opinion,  in  all 
the  acts  and  actors  of  the  government,  is  by 
laying  the  foundation  of  them  all  directly  in 
popular  election.  :f  The  House  of  Representa- 
tives shall  be  composed  of  members  .  .  .  chosen 
by  the  people."  This  is  the  first  and  principal 
branch  of  the  supreme  legislature;  and  no  step 
can  be  taken  in  creating  or  sustaining  any  other 
or  further  act  or  agency  in  the  government,  with- 
out their  acquiescence  and  assistance. 

§  222.  Thus  the  whole  superstructure  is  built 
on  the  suffrages  of  the  people.  The  people  are 
the  citizens,  the  members  of  the  body  politic, 
and  all  the  members.  Not  that  every  member 
must  necessarily  vote,  or  even  have  personally, 
under  all  circumstances,  a  right  to  vote.  Public 

15 


226  LEGISLATIVE   POWERS.  —  GENERAL. 

opinion  can  be  collected  at  a  cheaper  rate.  The 
Constitution  implies  that  the  electors  may  be  a 
different  body,  though  it  must  be  composed  en- 
tirely from  the  mass  of  citizens,  and  no  others. 
Still  they  must  be  competent  to  think,  speak, 
and  act  for  the  whole,  and  in  the  name  of  the 
whole,  —  not  merely  by  the  arbitrary  appoint- 
ment of  civil  society,  but  by  the  permanent  laws 
of  nature,  and  the  unchangeable  edicts  of  the 
divine  constitution.  These  may  be  known  and 
read  of  all  men.  The  public  law  of  all  lands 
arrogates  to  the  adult  males  the  competency  to 
represent  the  physical,  intellectual,  and  financial 
power  of  the  nation;  and,  in  the  absence  of  all 
experimental  proof  to  the  contrary,  it  may  be 
safely  presumed,  that  neither  the  addition  nor 
substitution  of  women  or  children  or  both  would 
beneficially  or  even  materially  affect  the  result. 
But  the  list  may  not  be  rightfully  diminished  but 
for  cause,  —  and  such  a  cause  as  might  justly 
show  an  unfitness  for  the  duty,  and  so  operate  a 
deprivation  of  the  right,  as  well  in  respect  to 
this  as  any  other  right  involving  a  correspond- 
ing duty.  Public  opinion,  thus  constitutionally 
manifested,  forms  the  corner-stone  and  the  super- 
structure of  our  government. 

§  223.  It  is  not  presumed  that  Representatives 
so  chosen  will  sanction  measures  leading  to  the 
appointment  of  other  agencies  that  will  disre- 
gard the  rule  by  which  all  must  be  ultimately 
controlled.  But  if  this  should  fail,  and  the  gov- 


LEGISLATIVE  POWERS.  —  GENERAL.  227 

eminent  should  stray  beyond  the  line  which 
public  opinion  will  sanction,  the  periodical  recur- 
rence of  the  election  will  call  them  back,  and 
enforce  what  is  considered,  in  most  cases,  an 
adequate  responsibility,  by  passing  judgment  on 
their  acts.  The  theory  is,  that  public  opinion 
substantially  directs  the  course  of  the  machine, 
by  choosing  the  original  officers,  and  then  peri- 
odically holds  them  to  account  for  their  acts,  by 
passing  judgment  on  the  results  of  their  opera- 
tions. 

§  224.  For  this  purpose,  it  is  not  necessary 
that  the  same  officers  should  be  candidates  for 
re-election.  It  is  sufficient  to  enable  the  people 
to  approve  or  to  condemn  a  particular  measure, 
or  the  general  course  of  measures,  that  the  suc- 
cession is  to  be  provided  for  from  the  associates 
and  supporters  of  the  incumbent,  or  elsewhere. 
In  this  manner,  adequate  provision  is  supposed 
to  be  made  for  the  constant  supervision  and 
efficient  responsibility  of  the  government,  and 
for  the  expression  and  enforcement  of  a  delib- 
erate and  intelligent  public  opinion.  The  prin- 
ciples of  this  model  are  substantially  enjoined 
on  the  States,  by  requiring  of  them  a  republican 
form  of  government,  and  especially  by  laying 
the  foundation  of  their  governments  in  the  same 
popular  election. 

§  225.  The  qualifications  of  the  electors  of 
Representatives  to  Congress  and  of  the  most 
numerous  branch  of  the  State  legislatures  must 


228  LEGISLATIVE  POWERS.  — GENERAL. 

be  the  same;  and  as  those  of  electors  for  mem- 
bers of  Congress  are  absolutely  fixed  by  the 
Constitution,  so  far  as  respects  citizenship,  they 
are  fixed  also  in  this  respect  for  the  States. 
The  States,  then,  must  have  legislatures  in  two 
branches;  and  the  members  of  the  most  nume- 
rous branch,  like  the  members  of  the  House  of 
Representatives  of  the  United  States,  must  be 
chosen  by  the  people.  If  they  must  be  chosen 
by  the  people,  then  the  people,  the  citizens,  and 
they  only,  have  a  right  to  choose  them.  All 
rights,  even  life  and  liberty,  may  be  forfeited;  but 
the  forfeiture  must  be  demanded  and  taken  by 
due  process  of  law,  and  not  by  arbitrary  edict. 

§  226.  Many  other  particular  provisions  are 
emphatically,  though  indirectly,  required  by  the 
Constitution,  for  the  State  governments,  by  be- 
ing made  absolutely  necessary  to  enable  them  to 
perform  their  appropriate  and  required  duties  as 
States  in  the  Union,  and  portions  of  the  United 
States.  The  States  must  not  only  have  govern- 
ments, and  republican  governments,  and  consti- 
tutions,1 which  must  necessarily  be  written  con- 
stitutions; but  their  governments  must,  like  that 
of  the  United  States,  be  divided  into  three  de- 
partments, legislative,  executive,  and  judicial ;  for 
the  Constitution  assigns  appropriate  duties  to 
each  of  these  departments,  requiring  their  exist- 
ence and  separate  organization.  The  legislative 
department  must  also  have  a  plurality  of  branches; 

i  Article  VI. 


LEGISLATIVE  POWERS.  —  GENERAL.  229 

for  the  Constitution  describes  one  as  the  most 
numerous  branch,1  obviously  in  allusion  to  its 
own  division  into  the  two  Houses  of  Repre- 
sentatives and  Senators. 

§  227.  It  would  seem  that  the  executive  must 
be  single ; 2  for  otherwise  there  might  be,  in  case 
of  domestic  violence,  the  same  difficulty  in  con- 
vening them,  as  the  Constitution  intends  to  pro- 
vide against  in  regard  to  the  legislature.  The 
Constitution  provides  that  the  State  Judges  shall 
be  bound  by  the  Constitution  and  laws  of  the 
United  States,  and  for  the  faith  and  credit  of 
their  judicial  proceedings.  There  can  be  no  hesi- 
tancy in  admitting,  that  a  government,  founded 
and  faithfully  administered  on  these  principles 
and  by  such  agencies,  is  a  republican  govern- 
ment within  the  meaning  of  our  Constitution. 

§  228.  The  duty  to  protect  each  State  against 
invasion  is  an  instance  of  the  many  pleonasms 
and  reduplications  of  the  Constitution.  Every 
State,  Territory,  and  District,  being  a  part  of  the 
United  States,  has  its  safety  abundantly  provided 
for  by  the  more  general  and  important  duty 
elsewhere  enjoined,  "  to  provide  for  the  common 
defence."  The  remaining  duty  of  this  section, 
to  protect  each  State  against  domestic  violence, 
is  apparently  postponed  for  an  application  from 
the  State  itself  for  assistance.  But  it  may  well 
be  doubted  if  any  dereliction  of  duty  on  the 
part  of  the  officers  of  the  State,  whether  legis- 

i  Article  I.  2  Article  IV. 


230  LEGISLATIVE  POWEKS.  —  GENERAL. 

lative  or  executive,  would  afford  an  adequate 
excuse  for  the  general  government,  in  suffering 
the  regular  administration  of  the  authorized  re- 
publican government  of  a  State  to  be  overthrown 
and  destroyed,  or  otherwise  substantially  inter- 
fered with,  by  domestic  violence,  under  circum- 
stances that  obviously  required  their  authoritative 
interposition  for  the  preservation  of  the  peace 
and  good  order  of  the  community. 

§  229.  The  sixth  Article  of  the  Constitution 
contains  three  divisions  or  sections,  neither  of 
which  expressly  requires  or  authorizes  any  action 
of  Congress,  and  yet  neither  of  them  ever  has 
been  or  can  be  executed  and  enforced  without 
legislation,  which  Congress,  and  Congress  only, 
can  furnish;  and  which  they  have  furnished,  to 
such  an  extent  as  to  show  that  any  deficiency  in 
this  respect  arises  from  some  other  cause  than 
a  want  of  power  under  the  Constitution.  The 
first  is,  "  All  debts  contracted,  and  engagements 
entered  into,  before  the  adoption  of  this  Con- 
stitution, shall  be  as  valid  against  the  United 
States  under  this  Constitution,  as  under  the 
Confederation."  The  prominent  idea  of  this 
section  is  the  succession  of  the  new  government 
to  all  the  duties  and  obligations  of  the  prior 
governments  of  the  nation.  The  right  of  suc- 
cession to  all  their  rights  of  property  had  al- 
ready been  provided  for  in  the  3d  section  of 
Article  IV.  The  result  would  have  been  the 
same,  however,  if  both  had  been  omitted. 


LEGISLATIVE  POWERS.  —  GENERAL.  231 

§  230.  By  international  and  universal  law,  a 
change  of  dynasty  works  no  alteration  in  the 
rights  or  duties  of  a  State.  Its  laws  and  insti- 
tutions also  remain  the  same,  except  in  so  far  as 
they  may  be  directly  affected  by  the  change  in 
question.  The  clause  was  intended  to  provide 
especially  for  the  debts  of  the  Revolutionary  and 
Confederation  governments.  These  have  been, 
long  since,  fully  paid  and  discharged;  and  it  has 
so  far  become  functus  officio.  In  regard  to  en- 
gagements, it  undoubtedly  included  all  existing 
treaties  with  foreign  nations,  and  is  supposed  to 
have  particularly  intended  the  obligations  as- 
sumed by  the  ordinance  of  1787.  These  were 
substantially  re-enacted  by  the  Act  of  1789. 

§  231.  ]S\>  such  re-enactment  was  necessary, 
if  the  ordinance  was  originally  Valid.  But  a 
doubt  on  this  subject  occasioned  these  proceed- 
ings by  way  of  confirmation.  Otherwise  the 
ordinance  was  as  much  a  part  of  the  law  of  the 
land,  after  the  adoption  of  the  Constitution,  as 
it  was  before.  Few  general  laws  had  ever  been 
passed  by  either  of  the  prior  governments,  ex- 
cept what  subserved  the  immediate  purposes  of 
the  War  of  the  He  volution,  and  had  ceased  with 
it.  But  one  prominent  Act  of  the  Revolu- 
tionary Congress,  the  Declaration  of  Indepen- 
dence, remained  in  force,  and  was  handed  over 
for  administration  to  the  Confederation. 

§  232.  It  never  has  been  repealed  or  become 
obsolete,  and  is  to  this  day,  as  on  the  fourth  of 


232  LEGISLATIVE  POWERS.  —  GENERAL. 

July,  1776,  a  part  of  the  law  of  the  land,  with 
the  principles  on  which  it  was  founded,  and  by 
which  it  was  sustained.  ISTo  dynasty  has  ever 
revoked  or  annulled  it,  or  any  part  of  it.  The 
Constitution  of  the  United  States  is  so  far  from 
having  repudiated  or  weakened  it,  or  any  of  its 
principles,  that  it  is  built  upon  it  as  upon  a 
corner-stone,  and  has  made  its  principles  the 
absolute  foundation  of  the  whole  fabric  of  our 
government.  The  clause  in  both  its  parts  has 
been  carried  into  execution  by  appropriate  legis- 
lation. 

§  233.  The  2d  section  of  this  Article  is,  «  This 
Constitution,  and  the  laws  of  the  United  States, 
which  shall  be  made  in  pursuance  thereof,  and 
all  treaties  made,  or  which  shall  be  made,  under 
the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land ;  and  the  judges  in 
every  State  shall  be  bound  thereby ;  any  thing 
in  the  constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding."  The  object  and  ef- 
fect of  this  explicit  declaration  of  the  entire 
supremacy  of  the  government  of  the  United 
States  over  the  whole  nation,  is  so  palpable  and 
intelligible,  as  to  supersede  any  attempt  at  ex- 
position, or  any  endeavor  to  make  it  more  plain 
or  more  certain,  by  any  choice  or  arrangement 
of  words  that  could  be  applied  to  it.  Every 
part  of  it,  however,  requires  almost  constant 
legislation,  though  no  interference  of  Congress 
is  expressly  authorized  by  any  part  of  it.  "Nei- 


LEGISLATIVE  POWERS.  —  GENERAL.  233 

ther  the  Constitution,  laws,  nor  treaties,  would 
have  been  of  any  avail  originally,  without  Con- 
gress; and  even  now  the  wheels  of  government 
would  speedily  stop,  without  the  frequent  renewal 
of  legislative  appliances. 

§  234.  Over  and  above  everybody  else,  who 
are  undoubtedly  bound  by  the  laws,  State  Judges 
in  particular  are  said  to  be  specially  bound 
thereby ;  because  they  are  not  only  to  obey,  but 
it  is  their  official  business  to  administer  and 
execute,  the  laws  of  the  land.  Congress  have 
never  undertaken  to  carry  this  provision  into 
execution,  otherwise  than  by  providing  for  a  re- 
vision of  their  proceedings  in  certain  cases;  but 
he  would  be  a  bold  legislator  who  should  assert 
that  this  was  the  end  of  all  the  power  of  Con- 
'gress  for  carrying  into  execution  this  provision 
of  the  Constitution.  So  the  last  clause  of  the 
section  authorizes  all  Judges  and  all  people  to 
treat  as  nugatory  and  void  any  State  constitu- 
tutions  or  laws  contrary  to  any  part  of  the 
supreme  law  of  the  land.  But  it  is  not  thence 
to  be  inferred,  that  no  further  laws  for  carrying 
it  into  execution  would  be  necessary  and  pro- 
per, if  the  opinion  of  Congress  should  lead  them 
to  a  different  result. 

§  235.  The  3d  and  last  section  of  this  Article 
VI.,  requiring  all  officers,  State  and  national^  to 
be  bound  by  oath  to  support  the  Constitution, 
has  been  already  sufficiently  remarked  upon. 
Legislation,  though  not  authorized  on  its  face, 


234  LEGISLATIVE  POWERS.  —  GENERAL. 

was  first  used  on  this  section,  and  has  remained 
in  full  force  ever  since. 

§  236.  "The  ratification  of  the  conventions1 
of  nine  States  shall  be  sufficient  for  the  estab- 
lishment of  this  Constitution,  between  the  States 
so  ratifying  the  same."  The  Constitution  was 
ratified  by  all  the  States;  but  without  legislation 
it  was  a  mere  dead  letter,  and  would  so  have 
remained  to  this  day.  Yet  the  Article  on  its 
face  neither  authorizes  nor  requires  any.  All 
the  powers  of  legislation  necessary  to  vivify 
and  carry  into  execution  the  Constitution,  and 
all  the  powers  of  the  government,  as  well  as 
the  particular  provisions  of  the  preceding  sec- 
tions, already  commented  on,  must  be  found, 
and  were  found,  in  other  parts  of  the  Constitu- 
tion. If  they  had  not  been,  the  Constitution 
never  could  have  gone  into  operation  at  all, 
much  less  could  it  have  been  successfully  ad- 
ministered and  practised  upon,  as  it  has  been, 
for  more  than  three  quarters  of  a  century. 

i  Article  VII. 


CHAPTEK   XYII. 

LEGISLATIVE  PO WEES.  —  SPECIAL. 

§  237.  IN  further  explanation  of  the  extent  of 
the  legislative  power  of  the  government,  though 
not  in  addition  to  it,  the  Constitution  mentions 
many  subjects  particularly,  to  which  the  atten- 
tion of  Congress  is  specially  called,  and  in  re- 
gard to  which  their  action  is  directly  invoked. 
It  also  contains  some  qualifications  and  restric- 
tions of  that  power.  These  will  next  be  noticed 
in  their  order;  and  such  of  them  as  may  be 
thought  to  invite  particular  attention,  will  re- 
ceive it.  The  first  of  these  special  powers 
relates  to  the  census.1  "  The  enumeration  [of  the 
people]  shall  be  made  within  three  years  after 
the  first  meeting  of  the  Congress  of  the  United 
States,  and  within  every  subsequent  term  of 
ten  years,  in  such  manner  as  they  shall  by  law 
direct." 

§  238.  This  power  is  legislative;  for  it  is  to  be 
executed  "by  law,"  that  is,  by  making  a  law. 
It  also  relates  to  several  of  the  avowed  purposes 

1  Article  I.,  section  2. 

[235] 


236  LEGISLATIVE  POWERS.  —  SPECIAL. 

of  the  people  in  the  establishment  of  the  Con- 
stitution. It  has  a  direct  bearing  upon  the  "  per- 
fection of  the  Union,"  by  its  influence  on  the 
equalization  of  the  representation  of  the  people. 
"  Justice  "  and  "  tranquillity  "  are  affected  in  the 
same  way.  The  "  common  defence  "  and  "  gene- 
ral welfare"  may  be  promoted  by  ascertaining 
the  strength  and  distribution  of  the  physical 
force  of  the  nation.  In  executing  this  provision, 
Congress  have  wisely  included  in  the  census 
much  useful  information,  besides  the  mere  enu- 
meration of  the  people.  But,  in  the  simple 
enumeration,  several  matters  of  more  or  less  im- 
portance, not  specifically  provided  for  in  the 
Constitution,  might  well  be  settled  by  law. 

§  239.  The  apportionment  of  Representatives 
and  direct  taxes  is  to  be  predicated  upon  it.  It 
is  therefore  important  to  know  on  what  princi- 
ples it  is  made.  By  the  Constitution,  it  must 
include  all  persons;  for  "the  whole  number  of 
free  persons,  .  .  .  and  ...  all  other  persons," 
are  all  persons.  Yet  not  absolutely;  for  "Indians 
not  taxed "  are  expressly  excluded.  Who  are 
they?  All  the  descendants  of  the  Indian  na- 
tives, who  adopt  our  civilization,  live  in  the 
midst  of  our  people,  and  subject  to  the  duties  of 
our  laws?  Those  who  live  in  the  same  manner, 
but  having  nothing  to  be  taxed  for,  and  nothing 
to  pay  taxes  with,  are  not  taxed?  Or  those  who, 
living  in  their  own  tribes,  separate  from  our  peo- 
ple, governed  by  their  own  usages  and  customs, 


LEGISLATIVE  POWERS.  —  SPECIAL.  237 

and  not  participating  in  our  civilization,  or  in 
our  jurisprudence?  Again,  from  what  are  they 
excluded?  From  the  enumeration  altogether, 
or  only  from  the  first  class,  who  are  counted  as 
units? 

§  240.  But  there  may  be  other  exclusions. 
"All  persons  "  does  not  really,  in  this  place,  mean 
everybody,  without  regard  to  any  thing  but  their 
humanity  and  personality.  They  must  bear  some 
relation  to  the  State  in  which  they  are  enumer- 
ated. What  is  this?  Must  they  be  actually  in 
the  State  at  the  time?  Must  they  have  a  home, 
domicile,  or  permanent  residence  in  the  State, 
whether  there  or  not  personally  ?  Must  they 
be  members  of  the  State,  have  the  franchise  ; 
or  may  they  be  foreigners,  and  without  right? 
If  aliens,  friends  or  enemies  ?  Must  they  be 
counted  as  units  or  fractions?  Be  free,  —  enti- 
tled to  the  freedom  of  the  country,  —  in  dis- 
tinction from  foreigners,  in  distinction  from 
bondsmen,  or  in  distinction  from  slaves  ?  If 
such  questions  are  not  settled  by  law,  they  must 
be  settled  practically  by  the  officer  who  takes  the 
census  in  every  parish,  and  may  have  as  many 
different  decisions  as  there  are  such  officers. 

§  241.  At  this  moment  [1864]  how  many 
members  of  Congress  owe  their  seats  to  the 
enumeration  of  traitorous  citizens  and  foreign 
enemies ;  how  many  to  aliens,  every  white  one 
being  a  unit,  and  every  black  only  three-fifths 
of  one  ?  If  persons  in  the  service  of  the  gov- 


238  LEGISLATIVE  POWERS.  —  SPECIAL. 

eminent,  in  its  armies  or  otherwise,  may  be 
counted  where  they  are  stationed  when  the  cen- 
sus is  taken,  they  might  add  several  members  to 
the  delegations  of  States  where  they  are,  and 
detract  as  many  more  from  States  where  they 
belong.  This  would  be  as  unjust  to  the  States 
concerned,  as  their  absolute  disfranchisement 
would  be  to  themselves. 

§  242.  By  section  4,  "  The  times,  places,  and 
manner  of  holding  elections  for  Senators  and 
Representatives  shall  be  prescribed,  in  each  State, 
by  the  legislature  thereof;  but  the  Congress  may 
at  any  time,  by  law,  make  or  alter  such  regula- 
tions, except  as  to  the  places  of  choosing  Sena- 
tors." This  involves  an  inquiry  into  the  nature 
and  extent  of  the  power  provided  for,  and  into 
the  disposition  made  of  it.  It  authorizes  Con- 
gress to  do  supremely  whatever  the  State  legis- 
latures may  do  provisionally,  on  any  part  of  the 
subject.  Its  relation  to  the  general  purposes  of 
the  Constitution,  as  announced  in  the  enacting 
clause,  are  sufficiently  palpable;  for  the  govern- 
ment, so  necessary  for  forming  "  a  more  perfect 
Union,"  and  executing  the  whole  Constitution, 
could  not  be  organized  and  maintained  without 
it.  The  authors  of  the  "  Federalist "  say  that  this 
provision  was  inserted  on  the  avowed  principle, 
"  that  every  government  ought  to  contain  in  it- 
self the  means  of  its  own  preservation."  This 
is  obviously  the  true  reason,  and  the  only  one, 
giving  the  largest  signification  to  the  word  pres- 


LEGISLATIVE  POWERS.  —  SPECIAL. 


ervation.  To  render  the  provision  adequate  to 
its  purpose,  it  is  necessary  that  it  should  extend 
to  every  regulation  requisite  for  holding  and 
perfecting  such  an  election.  The  Supreme  Court 
have  well  said,  that,  wherever  the  Constitution 
confers  a  power,  it  includes  with  it  whatever  is 
necessary  to  render  that  power  effectual. 

§  243.  The  4th  section  is  broad  enough  to 
include  the  regulation  of  the  whole  elective 
franchise,  and  the  mode  of  its  exercise.  General 
provisions  of  this  sort  must  be  made  effectual  to 
dispose  of  the  whole  subject  and  give  it  its  per- 
fect effect,  unless  there  are  other  provisions  by 
the  same  authority  making  a  different  disposi- 
tion of  some  parts  of  it.  Whatever  particulars 
are  elsewhere  regulated,  need  not  and  may  not 
be  otherwise  disposed  of,  under  this  general  au- 
thority. It  will  not  be  pretended,  that,  with 
this  Article  in  the  Constitution,  an  election  of 
Senators  or  Representatives  could  legally  be 
allowed  to  fail,  even  if  there  had  been  no  other 
allusion  to  any  part  of  the  subject  in  the  whole 
instrument.  This  provision  alone  would  have 
furnished  ample  authority  for  regulating,  by  law, 
the  whole  subject,  from  the  number  and  qualifi- 
cations of  the  electors  and  the  elected,  to  the 
ascertaining  and  commissioning  the  officers. 
Nor  will  it  be  pretended,  that  any  matter  ex- 
pressly provided  for  by  the  Constitution,  either 
by  direct  precept  or  by  special  reference  to  a 
subordinate  power,  can  be  altered  or  otherwise 


240  LEGISLATIVE  POWERS.  —  SPECIAL. 

regulated  under  the  general  authority  of  this 
section. 

§  244.  For  instance,  the  Constitution  says  that 
Representatives  shall  be  chosen  by  "  the  people," 
and  Senators  by  the  State  "  legislatures,"  —  the 
first  for  two  years,  and  the  last  for  six  years; 
and  that,  for  filling  vacancies  in  the  first,  the 
executive  "  shall  issue  writs  of  election,"  and  in 
the  second,  "  shall  make  temporary  appoint- 
ments." It  will  not  be  contended,  that  these  or 
any  other  precepts  of  the  Constitution  can  be 
superseded  or  interfered  with  by  virtue  of  this 
4th  section.  The  result  is  that  all  elections  of 
Senators  and  Representatives  shall  be  instituted 
and  conducted  under  the  authority  of  this  sec- 
tion, in  all  respects  not  otherwise  provided  for 
in  this  Constitution.  Thus  the  whole  subject  is 
left  precisely  where  it  would  have  stood  if  the 
section  had  been  omitted.  If  Congress  is  silent, 
the  State  legislatures  may  do  what  they  please 
that  is  not  prohibited;  and,  if  the  State  legisla- 
tures do  any  thing  that  ought  not  to  be  done, 
Congress  may  undo  it.  Of  the  importance  and 
extent  of  the  authority  to  regulate  and  control 
the  exercise  of  the  elective  franchise,  there  was 
no  difference  of  opinion  in  the  Convention,  or  in 
the  State  Conventions.  The  only  difference  was 
where  it  should  be  placed. 

§  245.  Mr.  Madison  said,  in  the  Convention, 
on  this  section,  "  These  are  words  of  great  lati- 
tude. .  .  .  Whether  the  electors  should  vote  by 


LEGISLATIVE  POWERS.  —  SPECIAL.  241 

ballot,  or  viva  voce ;  should  assemble  at  this 
place  or  that  place;  should  be  divided  into  dis- 
tricts, or  all  meet  at  one  place;  should  all  vote 
for  all  the  Representatives,  or  all  in  a  district 
vote  for  a  number  allotted  to  the  district, — 
these,  and  many  other  points,  .  .  .  might  mate- 
rially affect  the  appointments."1  Mr.  Webster, 
in  regard  to  the  right  of  suffrage,  lays  down 
"  two  great  principles  of  the  American  system : 
1st,  The  right  of  suffrage  shall  be  guarded,  pro- 
tected, and  secured  against  force  and  against 
fraud.  2d,  Its  exercise  shall  be  prescribed  by 
previous  law ;  its  qualifications  shall  be  pre- 
scribed by  previous  law;  the  time  and  place  of 
its  exercise  shall  be  prescribed  by  previous  law; 
the  manner  of  its  exercise,  under  whose  super- 
vision (always  sworn  officers  of  the  law) ,  is  to  be 
prescribed,  and  then  the  results  are  to  be  certified 
to  the  central  power,  by  some  certain  rule." 2 

§  246.  To  make  or  alter  "  regulations  "  of  the 
"  times,  places,  and  manner  of  holding  elections," 
does  not  authorize  an  abrogation  of  the  consti- 
tutional right  of  a  citizen,  or  an  interference 
with  any  other  regulation  fixed  by  any  part  of 
the  Constitution.  It  is  only  to  do  these  things 
for  carrying  out  what  the  Constitution  has  al- 
ready prescribed,  —  not  to  determine  in  opposi- 
tion to  the  constitutional  right  of  every  citizen, 
but  to  regulate  so  as  to  protect  and  secure  the 
enjoyment  of  the  right.  The  word  gualifica- 

i  3  Madison  Papers,  1280.  2  6  Webster's  Works,  224. 

16 


242  LEGISLATIVE  POWERS.  —  SPECIAL. 

tions,  as  used  in  the  first  clause  of  the  2d  section, 
can  refer  only  to  the  exercise  of  the  right,  and 
not  to  the  right  itself.  Members  of  the  House 
of  Representatives  K  shall  be  ...  chosen  by  the 
people  of  the  several  States."  People  are  citi- 
zens,—  citizens  of  the  United  States  and  resi- 
dents in  the  State.  Citizenship  and  residence  are 
the  only  qualifications  of  the  right ;  for  if  the 
Representatives  must  be  chosen  by  them,  they 
have  a  constitutional  right  to  choose  them,  of 
which  they  nor  any  of  them  can  be  rightfully  de- 
prived, otherwise  than  they  may  be  deprived  of 
other  rights,  —  by  forfeiture.  The  qualifications 
for  the  exercise  of  the  right  involve  a  compli- 
ance with  all  such  regulations  as  may  be  neces- 
sary to  secure  the  efficacy  of  the  right  for  those 
who  have  it,  and  the  exclusion  of  those  who 
have  it  not.  Regulation  and  restriction,  so  far 
as  necessary  or  useful,  may  be  just  and  proper; 
but  disfranchisement,  directly  or  indirectly,  is 
illegal.  Such  regulations  may  be  made  and 
altered,  under  section  4;  but  disfranchisement, 
otherwise  than  for  cause,  cannot  rightfully  be 
made  by  any  body. 

§  247.  Among  the  "  many  other  points  "  al- 
luded to  by  Mr.  Madison,  might  be  mentioned, 
consistent  with  the  general  rights  of  the  citizen 
to  the  elective  franchise,  his  previous  residence; 
payment  of  taxes  and  registration ;  the  fre- 
quency of  elections;  the  permanence,  functions, 
and  qualifications  of  the  elected;  the  check  list; 


LEGISLATIVE  POWERS.  —  SPECIAL.  243 

the  sorting,  counting,  declaring,  and  recording 
the  votes,  and  returning  the  result;  the  appoint- 
ment of  the  officers  and  their  authority,  under 
whose  supervision  all  this  is  to  be  done,  together 
with  the  means  of  punishing  frauds  and  secur- 
ing the  purity  of  the  election.  These  relate  only 
to  the  mode  of  guarding  and  regulating  the 
exercise  of  the  right.  All  this,  and  still  more,  is 
included  in  the  time,  place,  and  manner  of  an 
election ;  and  such  items  as  are  not  otherwise 
provided  for  fall  necessarily  within  the  purview 
of  this  general  provision.  Several  of  them  are 
regulated  in  other  parts  of  the  Constitution;  but 
such  as  are  not,  come  within  the  authority  here 
delegated. 

§  248.  The  only  qualifications  of  electors  of 
Representatives  to  Congress,  according  to  the 
2d  section,  are  citizenship  and  residence,  being 
of  w  the  people  of  the  several  States ; "  and  it 
is  doubted  if  there  can  be  any  others,  so  far 
as  the  franchise  is  concerned.  The  words  "  re- 
quisite for  electors  of  the  most  numerous  branch 
of  the  State  legislature,"  make  it  necessary  that 
the  qualifications  of  electors  of  State  and  United- 
States  Representatives  should  be  absolutely  the 
same,  —  they  must  be  the  same  citizens,  and  no 
others;  or  at  least  the  electors  of  State  Repre- 
sentatives can  have  no  qualifications  in  addition, 
to  those  of  electors  of  members  of  Congress. 
The  2d  section  does  not  say  by  whom  these 
qualifications  shall  be  prescribed,  for  this  had 


244  LEGISLATIVE  PO WEES.  —  SPECIAL. 

already  been  done,  so  far  as  concerns  the  right; 
all  else  can  relate  only  to  the  mode  of  regulating 
and  exercising  the  right;  and  this  is  expressly 
conferred  on  Congress  by  section  4.  The  quali- 
fications of  the  right  of  electors  of  members  of 
Congress  being  thus  fixed  and  unalterable,1  no 
others  can  be  made  for  State  Representatives 
without  destroying  the  identity.  If,  therefore, 
color  or  race  is  not  made  a  qualification  for  an 
elector  of  Representatives  to  Congress,  it  cannot 
be  made  a  qualification  for  an  elector  of  State 
Representatives,  whoever  may  regulate  it. 

§  249.  The  4th  section,  now  under  considera- 
tion, gives  the  power  of  ultimate  control  over 
the  election  of  members  of  Congress  to  the  na- 
tional legislature.  The  power  to  regulate  db  ini- 
tio,  or  to  alter  regulations  otherwise  made,  is  in 
fact  a  power  of  control  over  the  whole  subject. 
The  right  of  the  State  legislature  is  nothing 
more  than  they  exercise  on  all  subjects  expressly 
delegated  to  the  general  government,  when  that 
government  does  not  exercise  the  power.  If 
Congress  exercises  it,  the  State  legislature  can- 
not. If  Congress  does  not  regulate  it,  the  State 
legislation  is  valid  in  this  case,  as  in  all  others 
where  there  is  no  prohibition.'  But,  in  both 
cases,  the  action  of  Congress  is  equally  decisive. 
So  that  Congress  directly  regulates  the  qualifi- 
cations of  the  electors  of  its  own  members,  and 
indirectly  or  incidentally  also  the  qualifications 

1  See  also  fourteenth  Amendment. 


LEGISLATIVE  POWERS.  —  SPECIAL.  245 

of  electors  of  State  Representatives,  under  the 
authority  of  this  section. 

§  250.  They  have,  by  the  express  provision  of 
this  section,  the  absolute  power  to  regulate  the 
election  of  their  own  members.  Whether  they 
directly  regulate  that  of  State  Representatives, 
or  leave  it,  as  they  may,  to  the  State  legislatures, 
—  in  either  case,  the  qualifications  of  voters  for 
the  latter  must  be  either  exactly  the  same  as 
those  of  the  former,  or  at  least  can  require 
nothing  additional  thereto.  Perhaps  the  qualifi- 
cations for  electors  of  State  Representatives, 
consistently  with  the  words  of  the  Constitution, 
might  be  less,  but  certainly  they  could  not  be 
greater,  than  those  for  members  of  Congress. 
ISTo  State  can  add  a  qualification  of  color  or  race, 
or  any  other,  for  the  election  of  their  own  Rep- 
resentatives, after  Congress  shall  have  fixed  the 
qualifications  of  their  own  electors  without  it. 
This  provision  for  the  identity  of  the  qualifica- 
tions of  the  electors  of  the  national  and  State 
Representatives,  has  not  unfrequently  been  rep- 
resented as  absolutely  conferring  the  power  of 
prescribing  the  qualifications  upon  the  State 
legislatures.  But  it  does  not  say  so,  nor  neces- 
sarily imply  such  an  intent. 

§  251.  It  contains  nothing  inconsistent  with 
any  different  arrangement.  Such  a  one  might 
have  been  added  to  the  2d  section  in  these 
words,  "  These  qualifications  shall  be  prescribed 
by  Congress,"  in  perfect  compatibility  with  all 


246  LEGISLATIVE  PO WEES.  —  SPECIAL. 

that  precedes.  It  might  also  be  inserted  any- 
where else.  But  it  must  be  somewhere,  or  the 
government  would  be  destitute  of  the  means  of 
guaranteeing  the  republicanism  of  the  States,  or 
even  of  preserving  its  own.  Whosoever  dis- 
tributes the  national  sovereignty,  as  exercised 
by  the  suffrage,  among  the  few  or  the  many,  has 
the  uncontrollable  power  to  say  whether  the 
government  shall  be  a  republic,  an  oligarchy,  or 
a  monarchy.  Even  if  the  2d  section  could  be 
forced  into  saying,  absolutely,  that  the  qualifica- 
tions should  be  regulated  by  the  State  legisla- 
tures, it  would  say  nothing  more  than  is  said 
expressly  by  the  4th.  "  The  times,  places,  and 
manner  of  holding  elections"  covers  the  whole 
subject-matter,  —  the  officers,  the  agents,  and 
the  thing  done. 

§  252.  Whatever  w  regulations  "  the  State  le- 
gislature may  make  regarding  the  whole  subject, 
Congress  may  "  alter."  If  a  forced  construction 
of  the  2d  section,  making  it  say  what  it  does 
not  say,  could  enable  it  to  escape  this  controlling 
power  of  Congress,  the  consequence  would  be, 
that  "  the  means  of  its  own  preservation,"  which 
the  4th  section  was  intended  to  supply  to  the 
government,  would  be  destroyed,  and  the  gov- 
ernment subjected  to  all  the  hazards  that  section 
was  intended  to  prevent ;  and  the  guarantee 
clause l  be  rendered  entirely  nugatory,  by  taking 
away  from  Congress  the  power  to  fulfil  it. 

1  Article  IV.,  section  4. 


LEGISLATIVE  PO WEES.  —  SPECIAL.  247 

"Where  such  consequences  are  to  be  encountered, 
the  provision  supposed  to  produce  them  should, 
in  the  words  of  the  Supreme  Court,  w  be  ex- 
pressed with  irresistible  clearness"  and  not  left 
to  doubtful  inference  from  words  that  do  not 
express  it  at  all.  Undoubtedly  this  power,  like 
most  others  granted  to  Congress  and  not  pro- 
hibited to  the  States,  may  be  exercised  by  them, 
as  they  have  been,  until  Congress  interfere  with 
their  own. 

§  253.  The  application  of  this  provision  to  the 
election  of  Senators  is  more  limited.  The  num- 
ber and  qualifications  of  Senators,  as  well  as  the 
qualifications  of  their  electors,  who  must  be  the 
legislative  body,  or  at  least  members  of  that 
body,  are  fixed  by  the  preceding  section.  The 
place  of  choosing  Senators  is  excepted  from  the 
action  of  Congress,  to  prevent  the  members  of 
the  State  legislature  from  being  called  away 
from  their  seat  of  government,  or  where  they 
may  be  sitting.  Congress  is  therefore  restricted, 
in  regard  to  the  election  of  Senators,  to  the  time 
and  manner  thereof  only.  These,  in  case  of 
necessity,  may  be  so  regulated  by  Congress  as 
to  eflect  an  election,  even  though  a  majority  of 
either  or  both  Houses  of  the  State  legislature 
should,  in  violation  of  their  duty  under  the  Con- 
stitution, refuse  to  make  one,  or  even  undertake 
to  prevent  it;  both  of  which  our  recent  expe- 
rience has  shown  to  be  among  the  possible  evils 
of  our  system. 


248  LEGISLATIVE  POWERS.  — SPECIAL. 

§  254.  It  is  the  duty  of  the  government  to 
execute  the  Constitution;  and  there  can  be  no 
doubt  of  the  adequacy  of  their  power  to  do  it, 
in  whatever  form  its  prevention  may  be  attempt- 
ed. "  The  general  government,  though  limited 
as  to  its  objects,  is  supreme  with  respect  to  those 
objects.  This  principle  is  a  part  of  the  Consti- 
tution ;  and  if  there  be  any  who  deny  its  necessity, 
none  can  deny  its  authority.  To  this  supreme 
government  ample  powers  are  confided;  and,  if 
it  were  possible  to  doubt  the  great  purposes  for 
which  they  were  so  confided,  the  people  of  the 
United  States  have  declared  that  they  were  given 
*  in  order  to  form  a  more  perfect  Union,  establish 
justice,  insure  domestic  tranquillity,  provide  for 
the  common  defence,  promote  the  general  wel- 
fare, and  secure  the  blessings  of  liberty  to  them- 
selves and  their  posterity.' " * 

§  255.  The  words  "  chosen  "  and  w  choosing," 
as  applied  to  the  subject,  seem  to  imply  the 
suffrages  of  individual  electors  ;  and  the  word 
"  legislature,"  to  indicate  the  several  act  of  each 
House,  as  in  legislative  action.  But  the  usage  in 
different  States  has  varied  from  this  in  both  re- 
spects, and  Congress  has  never  interfered  to  pro- 
duce uniformity,  either  as  to  time  or  manner ; 
and  the  Senate  have  never  rejected  a  member  on 
account  of  the  mode  of  his  appointment  by  the 
State  legislature,  though  they  have  done  so  on 

1  Per  Marshall,  C.  J.,  for  the  Court,  in  Cohens  v.  Virginia,  6  Wheat. 
R.,  264. 


LEGISLATIVE  POWERS.  —  SPECIAL.  249 

account  of  the  time  of  the  election  having  been 
too  long  before  the  occurrence  of  the  vacancy  it 
was  intended  to  supply.  They  have  also  settled, 
in  a  recent  New-Jersey  case,  that,  where  the  two 
Houses  go  into  convention  for  the  election  of  a 
Senator,  without  any  statute  directing  the  mode 
of  election,  the  convention  themselves  cannot 
elect  by  less  than  a  majority  of  the  votes  cast. 
They  have  now  (1866) ,  however,  passed  a  statute 
on  the  subject,  prescribing  the  mode  of  proceed- 
ing in  the  election  of  a  Senator. 


CHAPTER   XYIII. 

LEGISLATIVE*  POWEES.  —  SPECIAL. 

§  256.  WHAT  kind  of  regulations  for  holding 
elections  are  to  be  prescribed  in  section  4,  under 
the  name  of  the  "  times,  places,  and  manner " 
thereof?  The  terms  themselves  seem  naturally 
to  imply,  that  they  relate  to  the  circumstances 
attending  the  election,  and  not  to  the  fact  of 
there  being  one,  or  the  right  of  the  people  to 
participate  in  it.  Regulations  extending  beyond 
this  could  only  be  justified  by  the  necessity  of 
the  case,  to  supply  omissions  in  the  Constitution, 
without  which  the  right  itself  could  not  be  ex- 
ercised. The  mode,  then,  of  exercising  the 
elective  franchise;  the  preliminary  rules,  limita- 
tions, and  qualifications,  as  to  the  manner  of 
asserting  and  using  the  right,  —  are  the  legiti- 
mate province  of  these  regulations  :  and  they 
can  prescribe  these  only  in  accordance  with  what 
the  Constitution  has  done,  and  in  the  particulars 
which  it  has  left  to  be  thus  supplied. 

§  257.  The  times.  This,  standing  by  itself 
and  construed  alone,  would  include  not  only  an 

[250] 


LEGISLATIVE  POWERS.  —  SPECIAL.  251 

authority  to  prescribe  the  year,  the  month,  the 
day,  and  the  hour,  but  the  frequency,  —  whether 
once  a  month  or  a  year,  or  once  in  ten  years,  &c. 
But  this  clause  is  only  a  part  of  the  Constitution; 
and,  when  it  authorizes  times  to  be  prescribed 
aliunde,  out  of  itself,  it  must  be  understood  to 
mean  in  harmony  and  consistency  with  its  own 
express  provisions.  By  giving  an  authority  to 
regulate  the  times,  it  does  not  give  an  authority 
to  repeal  or  violate  any  provision  of  its  own,  or 
reject  all  times,  with  the  election  itself,  and  the 
right  of  the  people  to  hold  it.  Of  course,  all  that 
can  be  done  under  this  authority  is  to  regulate  the 
times  in  conformity  to  the  constitutional  provi- 
sions elsewhere  made.  What  provisions  of  the 
Constitution  affect  and  restrain  the  power  that 
would  otherwise  be  included  in  this,  regarding  the 
times  of  holding  elections?  By  the  2d  section, 
Representatives  shall  be  "  chosen  every  second 
year;"  and,  by  the  3d  section,  Senators  shall  be 
chosen  for  six  years."  So  the  authority  for 
prescribing  the  "  times,"  in  the  4th  section,  must 
be  restricted  within  these  limits.  The  elections, 
under  this  section,  could  not  be  held  either  an- 
nually or  triennially  for  Representatives,  nor 
biennially  or  septennially  for  Senators. 

§  258.  In  regard  to  ^places"  the  authority 
on  its  face  is  equally  absolute  and  uncondi- 
tional; though,  as  the  Representatives  must  be 
chosen  "  by  the  people  of  the  several  States," 
and  the  person  chosen  must  be  "  an  inhabitant 


252  LEGISLATIVE  POWERS.  —  SPECIAL. 

of  that  State  in  which  he  shall  be  chosen,"  it 
is  implied  that  the  election  must  be  within  the 
bounds  and  jurisdiction  of  the  State.  It  was, 
however,  objected  to  this  clause,  when  before 
the  Conventions,  that  the  elections  for  Georgia 
might  be  required  to  be  held  on  the  Mohawk. 
This  is  a  specimen  of  the  unreasonableness  of 
some  of  the  objections  to  the  Constitution.  The 
Senators,  being  chosen  exclusively  by  the  State 
legislatures,  must  of  course  be  chosen  where  the 
legislature  is.  So  far,  the  authority  in  regard  to 
places  is  therefore  qualified  by  other  provisions. 
§  259.  The  "  manner  of  holding  elections,"  ex 
m  termini,  includes  every  thing  else,  requiring  to 
be  provided  for,  in  order  to  hold  successfully  an 
election  for  the  purposes  specified ;  and  would  in- 
clude the  "  times  "  and  "  places  "  also,  if  they  had 
not  been  particularly  mentioned  under  separate 
heads.  Whenever  it  is  decided  that  an  election 
shall  be  held  for  a  particular  purpose,  and  the 
matter  is  left  there  without  other  directions, 
only  that  the  "  manner  of  holding  "  it  shall  be 
prescribed  by  other  authority,  —  it  necessarily 
follows  that  that  other  authority  must  make 
all  the  regulations  requisite  for  accomplishing 
the  purposes  of  the  election.  The  "  manner  of 
holding  elections "  is  the  same  thing  as  the 
mode  of  accomplishing  elections,  or,  in  other 
words,  of  executing  that  part  of  the  Constitu- 
tion which  requires  certain  officers  to  be  desig- 
nated by  elections.  This  includes  many  circum- 


LEGISLATIVE  POWERS.  —  SPECIAL.  253 

stances  not  named  besides  times  and  places,  which 
are  named. 

§  260.  "We  are  n,ow  supposing  that  the  Con- 
stitution simply  required  these  elections  to  be 
made,  and  left  no  other  directions  relating  to 
them  in  any  way,  but  this.  4th  section.  What, 
then,  must  be  done  to  accomplish  the  purpose,  — 
to  execute  the  Constitution,  and  "prescribe  the 
manner  of  holding  the  elections  "  ?  Undoubtedly, 
the  time  and  place  having  been  provided  for,  the 
next  essential  requisite  for  holding  an  election 
would  be  the  appointment  of  proper  officers  for 
making  the  preliminary  arrangements,  presiding 
over  the  occasion,  and  authoritatively  ascertain- 
ing and  promulgating  the  result.  All  this  is 
provided  for  in  the  4th  section,  prescribing  the 
manner  of  holding  elections.  If  the  govern- 
mental action  should  stop  here,  the  eifect  would 
be  to  leave  all  the  rest  to  the  discretion  of  the 
officers,  and  so  the  constitutional  requirement 
of  the  election  of  Senators  and  Representatives 
would  be  executed.  The  officers  would  sum- 
mon whom  they  pleased,  count  what  votes  they 
pleased,  and  substantially  elect  whom  they 
pleased.  Thus  the  election  would  be  held,  and 
the  object  accomplished. 

§  261.  But  this  extent  of  discretionary  power 
would  not  long  be  satisfactory.  The  people 
would  require  some  rule  for  determining  the 
right  to  vote  and  be  voted  for.  This,  of  course, 
if  not  left  to  be  arbitrarily  settled  by  the  execu- 


254  LEGISLATIVE  POWERS. —  SPECIAL. 

tive  officers,  must  be  settled  by  the  same  au- 
thority that  prescribes  the  other  requisites  for 
holding  elections.  The  other  requisites,  going 
to  secure  the  purity  of  the  election  and  the  pun- 
ishment of  all  delinquencies,  are  numerous  and 
important,  and  equally  included  in  the  authority 
of  this  section ;  but  the  right  of  voting,  and  being 
voted  for,  goes  to  the  foundation  of  the  govern- 
ment, the  distribution  of  the  sovereignty  of  the 
nation,  and  to  the  republicanism  of  the  States. 
In  the  case  supposed,  all  these  matters  would 
have  to  be  regulated  under  the  authority  of  this 
section.  But,  in  point  of  fact,  there  are  other 
provisions  of  the  Constitution,  bearing  on  some 
parts  of  the  subject,  and  so  far  interfering  with 
what  might  otherwise  necessarily  have  been  reg- 
ulated under  this  section.  Let  us  for  a  moment 
examine  them. 

§  262.  First,  In  regard  to  the  elected.  Their 
number  is  fixed  by  other  clauses :  Senators  abso- 
lutely to  two  in  a  State,  and  Representatives 
provisionally,  according  to  the  census,  not  to  ex- 
ceed one  for  every  thirty  thousand,  though  every 
State  shall  have  one.  They  must  have  attained 
a  certain  age,  have  been  citizens  of  the  United 
States  for  a  certain  length  of  time,  and  be  actual 
inhabitants  of  the  State  where  chosen  at  the  time 
of  election.  The  right  of  Congress  to  require 
by  law  other  qualifications  has  never  been  exer- 
cised or  claimed,  and  the  right  of  the  States  to 
do  the  same,  though  claimed  and  exercised,  has 


LEGISLATIVE  POWERS.  — SPECIAL.  255 

never  been  admitted.  Second,  In  regard  to  the 
electors  also,  the  3d  section  settles  that  Senators 
shall  be  chosen  by  the  legislature  of  each  State ; " 
and  the  2d  section,  that  Representatives  "  shall 
be  chosen  by  the  people  [citizens]  of  the  several 
States,"  who  of  course  shall  have  a  right  to 
choose  them,  which  cannot  be  abrogated  or  de- 
nied. They  "  shall  have  the  qualifications  re- 
quisite for  electors  of  the  most  numerous  branch 
of  the  State  legislature,"  i.e.,  shall  be  the  same 
citizens  ;  for  they  can  constitutionally  be  no 
others. 

§  263.  In  addition  to  this,  the  government  is 
bound  to  guarantee  to  every  State  in  this  Union 
a  republican  form  of  government;  and,  as  para- 
mount to  all  other  duties,  and  essential  to  the 
performance  of  any  of  them,  they  are  bound  to 
protect  and  defend  their  own  existence  and 
right  to  perform  them  all.  The  last  is  rather  a 
necessary  incident  to  all  government,  than  an 
express  provision  of  the  Constitution.  These 
are  all  the  provisions,  in  any  part  of  the  Consti- 
tution, restricting,  or  in  any  manner  qualifying, 
the  authority  given  in  the  4th  section.  But  these, 
being  in  the  Constitution,  necessarily  bind  all 
agents  under  the  4th  section,  as  well  as  every- 
body else  subject  to  the  Constitution.  We 
will  now  examine  how  far  they  qualify  that 
power. 

§  264.  First,  Under  this  authority  to  regulate 
elections  of  Senators  and  Representatives,  and  to 


256  LEGISLATIVE  POWERS.  —  SPECIAL. 

prescribe  the  manner  of  them,  the  number  of 
Senators  cannot  be  changed,  or  the  qualifications 
of  their  electors ;  nor  the  place  of  their  elec- 
tion altered  by  Congress,  if  prescribed  by  the 
State  legislature.  But,  if  the  State  legislatures 
should  prescribe  neither  time,  place,  nor  manner, 
there  can  be  little  doubt  that  Congress  would  find 
it  inconsistent  with  their  duty  to  allow  the  elec- 
tion to  fail  on  that  account.  If  any  constitutional 
electors  can  be  found  willing  to  act,  Congress 
would  be  likely  to  find  means  to  procure  an  elec- 
tion, whatever  might  be  the  disposition  of  the 
main  body  on  the  subject. 

§  265.  Second,  In  regard  to  Representatives, 
the  Constitution  prescribes  their  qualifications, 
and  that  their  electors  must  be  citizens,  —  "  the 
people  of  the  several  States,"  —  and  have  the 
qualifications  requisite  for  electors  of  State  Rep- 
resentatives. But  it  does  not  prescribe  the  num- 
ber of  the  Representatives,  their  apportionment 
to  the  States,  nor  the  number  to  be  voted  for 
by  any  elector  5  and  it  is  perfectly  obvious,  that 
without  these  no  valid  election  can  be  held. 
Under  the  general  powers  of  the  Constitution, 
w  to  form  a  more  perfect  Union  "  and  "  promote 
the  general  welfare,"  Congress,  being  vested 
with  "  all  the  legislative  powers "  thereof,  de- 
fined to  be  "  power  to  make  all  laws  necessary 
and  proper  for  executing  the  Constitution,"  might 
regulate  these  subjects;  but  politicians  of  the 
State-rights  school  would  say,  and  say  truly,  in 


LEGISLATIVE  POWERS.  —  SPECIAL.  257 

the  language  of  Mr.  Madison's  and  Mr.  Monroe's 
vetoes,  that  they  did  not  find  a  specific  authority 
for  these  particular  measures,  except  in  this  4th 
section. 

§  266.  Here  they  are  expressly  authorized  to 
provide  for  "  holding  elections;"  and  "the  power 
vested  .  .  .  carries  with  it  ...  the  right  to 
make  that  power  effectual,"  and  of  course  to  do 
every  thing  necessary  to  make  it  so.  We  have 
seen  that  the  effect  of  the  identity  of  the  qualifi- 
cations of  State  and  national  electors  is  not  a 
grant,  or  a  vesting  of  the  power  to  prescribe 
them,  or  to  decide  what  is  requisite,  in  any  body. 
If  State  legislatures  do  it,  they  must  do  so  by 
virtue  of  power  gained  by  the  4th  section,  or 
elsewhere  than  in  the  2d  section ;  or  they  may  do 
it  by  sufferance,  as  they  make  bankrupt  laws  and 
do  other  things  not  prohibited  to  them,  though 
they  are  expressly  delegated  to  the  general  gov- 
ernment, and  so  not  reserved  to  the  States  or 
people.  Whatever  the  State  legislatures  may  do 
touching  any  part  of  the  subject  of  "  holding 
elections  for  Senators  or  Representatives,"  must 
be  done  by  virtue  of  this  4th  section,  and,  of 
course,  under  the  supervision  of  Congress.  Nor 
is  this  supervision  to  be  evaded  by  the  States 
undertaking  to  do  any  part  of  it  by  Constitution, 
rather  than  by  law.  If  any  States  should  "  pre- 
scribe the  tunes  for  holding  elections  for  Repre- 
sentatives "  to  Congress  in  their  constitution, 
instead  of  doing  it  by  Act  of  their  legislature, 

17 


258  LEGISLATIVE  POWERS.  —  SPECIAL. 

it  is  not  probable  that  the  effect  would  be  differ- 
ent from  what  it  wrould  be  if  done  the  other  way. 

§  267.  Nor  would  it  in  regard  to  the  "  places  " 
or  "  manner  "  of  holding  them.  Suppose  a  State 
should  provide,  by  their  Constitution,  that  all 
their  elections,  State  and  national,  should  be 
held  at  the  "  times  "  and  "  places  "  of  holding 
their  county  courts;  and  that  the  judges,  coun- 
sellors, jurors,  and  officers  of  the  court,  should 
be  legal  voters,  and  no  others,  —  this  would  be 
doing  by  Constitution  what  they  might  do  by 
law,  in  conformity  to  this  section,  if  there  were 
no  other  constitutional  provision.  It  would  "  pre- 
scribe the  times,  places,  and  [in  part]  manner 
of  holding  elections  for  .  .  .  Representatives  " 
to  Congress.  It  would  prescribe  the  qualifica- 
tions of  electors  of  State  Representatives,  and 
conform  the  electors  of  national  Representatives 
thereto;  thereby  disfranchising  probably  ninety- 
nine  hundredths  of  the  citizens  of  the  State. 
But  Congress  would  probably  say,  either  that 
the  Act  was  void,  so  far  as  it  concerned  Repre- 
sentatives to  Congress,  not  being  an  Act  of  the 
legislature;  or  that,  if  the  people  undertook  to 
legislate  by  themselves,  instead  of  by  their  Rep- 
resentatives, they  did  it  subject  to  the  same 
supervision :  and  they  would  act  accordingly. 
This  supervision  covers  the  whole  subject  of 
elections  provided  for  in  the  Constitution. 

§  268.  The  history  of  the  section  shows  this 
to  have  been  the  object  of  this  clause.  There  is 


LEGISLATIVE  PO WEES.  —  SPECIAL.  259 

no  room  for  doubt,  that  in  the  original  South- 
Carolina  Plan,  where  it  first  appears,  the  authors 
intended  that  the  new  government  should  be  as 
entirely  dependent  on  the  States  as  the  Confed- 
eration then  was.  It  provided  that  "  each  State 
should  prescribe  the  time  and  manner  of  holding 
elections  by  the  people  for  the  House  of  Dele- 
gates," and  also  that  "  the  qualifications  of  the 
electors  shall  be  the  same  as  those  of  the  elec- 
tors in  the  several  States  for  their  Representa- 
tives." The  Committee  of  Detail,  in  their  first 
draft  of  the  Constitution,  adopted  both  provi- 
sions With  alterations.  The  last  they  made  to 
read,  "  The  qualifications  of  the  electors  shall  be 
the  same,  from  time  to  time,  as  those  of  the 
electors  in  the  several  States  of  the  most  nume- 
rous branch  of  their  own  legislatures."  In  this 
form  it  was  objected  by  Mr.  G.  Morris,  w  that  it 
makes  the  qualifications  .  .  .  depend  on  the  will 
of  the  States,"  and  was  altered  by  him,  in  the 
revision,  to  read  as  it  now  stands  in  the  Consti- 
tution. 

§  269.  The  other  the  Committee  of  Detail  re- 
ported in  this  form :  "  The  times  and  places  and 
manner  of  holding  the  elections  of  the  members 
of  each  House  shall  be  prescribed  by  the  legis- 
lature of  each  State ;  but  their  provisions  con- 
cerning them  may,  at  any  time,  be  altered  by 
the  legislature  of  the  United  States : "  which  was 
amended  in  the  Convention  as  it  now  stands. 
The  question  in  regard  to  the  last  clause  turned 


260  LEGISLATIVE  POWERS.  —  SPECIAL. 

upon  the  fitness  of  giving  the  power  to  the  gen- 
eral or  State  government,  and  not  upon  the  ex- 
tent of  the  power.  But  the  discussion  in  the 
Convention  and  elsewhere  disclosed  the  views 
of  both  parties  on  that  subject.  The  South- 
Carolina  delegates  said,  that  "the  States  could 
and  must  be  relied  on  in  such  cases."  Mr.  Gor- 
ham  said,  "  It  would  be  as  improper  to  take  this 
power  from  the  national  legislature,  as  to  restrain 
the  British  Parliament  from  regulating  the  cir- 
cumstances of  elections,  leaving  it  to  the  coun- 
ties." 

§  270.  Mr.  Madison  said,  "The  necessity  of 
a  general  government  supposes  that  the  State 
legislatures  will  sometimes  fail  or  refuse  to  con- 
sult the  general  interest,  at  the  expense  of  their 
local  convenience  or  prejudice.  .  .  .  The  States 
ought  not  to  have  the  uncontrolled  right  of  regu- 
lating the  times,  places,  and  manner  of  holding 
elections.  These  were  words  of  great  latitude. 
It  was  impossible  to  foresee  all  the  abuses  that 
might  be  made  of  the  discretionary  power.  .  .  . 
The  inequality  of  the  representation  in  the  legis- 
latures of  particular  States  would  produce  a  like 
inequality  in  their  representation  in  the  national 
legislature,  as  it  was  probable  that  the  counties 
having  the  power  in  the  former  case  would 
secure  it  to  themselves  in  the  latter."  Mr.  King 
said,  "  If  this  power  be  not  given  to  the  national 
legislature,  their  right  of  judging  of  the  returns 
of  their  own  members  may  be  frustrated.  This 


LEGISLATIVE  POWERS.  —  SPECIAL.  261 

scheme  of  erecting  the  general  government  on 
the  authority  of  the  State  Legislatures  has  been 
fatal  to  the  "  Confederation,  and  is  a  "  dangerous 
idea." 

§  271.  Mr.  Hamilton,  in  the  w  Federalist,"  calls 
this  section  "  that  provision  of  the  Constitution 
which  authorizes  the  national  legislature  to  regu- 
late, in  the  last  resort,  the  election  of  its  own 
members ;  "  and  says  that  it  rests  on  w  this  plain 
proposition,  that  every  government  ought  to  con- 
tain in  itself  the  means  of  its  own  preservation" 
He  goes  far,  indeed,  towards  admitting  its  insuf- 
ficiency, which  was  perhaps  politic,  under  the 
circumstances  of  his  advocacy;  but  he  says  "that 
an  exclusive  power  of  regulating  elections  for 
the  national  government,  in  the  hands  of  the 
State  legislatures,  would  leave  the  existence  of 
the  Union  entirely  at  their  mercy; "  and  that  this 
clause  reserves  "  to  the  national  authority  a  right 
to  interpose,  whenever  extraordinary  circum- 
stances might  render  that  interposition  necessary 
to  its  safety."  This,  together  with  his  argument 
for  the  safety  of  the  power,  sufficiently  shows 
his  idea  of  its  magnitude;  though  he  afterwards 
says,  "  prescribing  qualifications  of  property  for 
those  who  may  elect,  or  be  elected,  .  .  .  forms 
no  part  of  it,  [because]  the  qualifications  of  the 
persons  who  may  choose  or  be  chosen  .  .  .  are 
defined  and  fixed  in  the  Constitution." 

§  272.  No  doubt,  so  far  as  they  are  so  defined 
and  fixed,  they  are  beyond  legislative  control. 


262  LEGISLATIVE  POWERS.  — SPECIAL. 

It  will  be  recollected,  so  far  as  respects  electors, 
their  qualifications  are  limited  by  the  Constitu- 
tion to  citizenship  and  residence,  —  being  "  peo- 
ple of  the  State ; "  but,  as  to  the  elected,  it  would 
be  difficult  to  prove  that  Congress,  having  the 
exclusive  right,  in  each  House,  of  final  judgment 
on  the  qualifications  of  their  own  members,  might 
not  make  some  rule  that  would  effect  exclusions, 
beyond  the  special  requirements  of  the  Consti- 
tution. Indeed,  the  law  directing  the  form  and 
substance  of  their  credentials,  and  requiring 
loyalty  to  the  country,  are  in  the  nature  of  such 
qualifications,  and  might  without  doubt  be  ex- 
tended to  other  requisites. 

§  273.  In  the  Massachusetts  Convention,  Mr. 
George  Cabot  considered  the  two  branches  of 
the  national  Congress  as  mutual  checks  upon 
each  other,  and  argued,  that,  "  if  the  State  legis- 
latures [who  are  the  constituents  of  the  Sena- 
tors] are  suffered  to  regulate  conclusively  the 
elections  of  the  democratic  branch,  they  may,  by 
such  an  interference,  first  weaken,  and  at  last 
destroy, -that  check;  they  may  at  first  diminish, 
and  finally  annihilate,  that  control  of  the  general 
government,  which  the  people  ought  always  to 
have,  through  their  immediate  Representatives." 
Mr.  Theophilus  Parsons,  afterwards  the  learned 
and  celebrated  Chief  Justice  Parsons,  contended 
that  the  powers  vested  in  Congress  by  this  sec- 
tion were  "  not  only  necessary  for  preserving  the 
Union,  but  also  for  securing  to  the  people  their 


LEGISLATIVE  POWERS.  — SPECIAL.        .       263 

equal  rights  of  election." ...  A  State  legisla- 
ture, for  personal  or  party  purposes,  in  times 
of  popular  commotion,  ft  might  make  an  un- 
equal and  partial  division  of  the  State  into  dis- 
tricts for  the  election  of  Representatives,  or  they 
might  even  disqualify  one-third  of  the  electors. 
Without  these  powers  in  Congress,  the  people 
could  have  no  remedy."  The  Hon.  Mr.  White, 
on  the  other  side,  said,  "  Suppose  the  Congress 
should  say  that  none  should  be  electors  but  those 
worth  £50  or  £100  sterling, — can  they  not  do  it? 
Yes,"  says  he,  w  they  can."  So  both  parties  con- 
sidered the  section  as  covering  the  whole  regula- 
tion of  elections,  including  the  qualifications  of 
electors  and  elected,  so  far  as  left  uncontrolled 
by  the  Constitution. 

§  274.  In  the  Virginia  Convention,  Patrick 
Henry  said,  "  The  control  given  to  Congress 
over  the  time,  place,  and  manner  of  holding  elec- 
tions will  totally  destroy  the  end  of  suffrage.  .  .  . 
Congress  may  tell  you  they  have  a  right  to  make 
the  vote  of  one  gentleman  go  as  far  as  the  votes 
of  a  hundred  poor  men.  The  power  over  the 
manner  admits  of  the  most  dangerous  latitude. 
.  .  .  They  may  regulate  the  number  of  votes  by 
the  quantity  of  property,  without  involving  any 
repugnancy  to  the  Constitution."1  Mr.  Madison 2 
said  "  it  was  necessary  to  give  the  general  gov- 
ernment a  control  over  the  time  and  manner  of 
choosing  Senators,  to  prevent  its  own  dissolu- 

i  3  Elliot's  Debates,  60, 175.  »  Ibid.,  p.  366. 


264  LEGISLATIVE  POWERS.  —  SPECIAL. 


"With  respect  to  the  time,  place,  and  man- 
ner of  electing  Representatives,  ...  it  was  found 
necessary  to  leave  the  regulation  of  these  ..  .  . 
subject  to  the  control  of  the  general  government, 
in  order  to  enable  it  to  produce  uniformity,  and 
prevent  its  own  dissolution.  .  .  .  Elections  are 
now  regulated  unequally  in  some  States,  particu- 
larly South  Carolina,  with  respect  to  Charleston, 
which  is  represented  by  thirty  members.  Should 
the  people  of  any  State,  by  any  means,  be  de- 
prived of  the  right  of  suffrage,  it  was  judged 
proper  that  it  should  be  remedied  by  the  general 
government."  He  had  said  on  another  occasion,1 
speaking  of  "the  qualifications  of  electors  and 
elected,  —  if  the  legislature  could  regulate  those 
of  either,  it  can  by  degrees  subvert  the  Consti- 
tution. A  republic  may  be  converted  into  an 
aristocracy  or  oligarchy,  as  well  by  limiting 
the  number  capable  of  being  elected,  as  the 
number  authorized  to  elect.  .  .  .  Qualifications 
founded  on  artificial  distinctions  may  be  devised 
by  the  stronger,  in  order  to  keep  out  partisans 
of  a  weaker  faction."  Mr.  George  Mason,  on 
the  other  side,2  said  "  that  Congress  may,  by  this 
claim,  take  away  the  right  of  representation,  or 
render  it  nugatory,  despicable,  or  oppressive. 
It  is  at  least  argumentative,  that  what  may  be 
done  will  be  done." 

§  275.   In   the   ^North-Carolina    Convention,3 
Mr.  Spencer  objected  to  this  clause,  that  it  gave 

1  5  Elliot,  404.  2  3  Elliot>  403.  •  4  Elliot,  52. 


LEGISLATIVE  POWERS.  —  SPECIAL.  265 

Congress  w  an  absolute  control  over  the  election 
of  Representatives."  — "  They  may  alter  the' 
mode  of  election,  so  as  to  deprive  the  people  of 
the  right  of  choosing."  — "  It  puts  all  but  the 
place  of  electing  Senators  into  the  hands  of  Con- 
gress." Mr.  Iredell,  afterwards  Mr.  Justice 
Iredell  of  the  Supreme  Court,  answered  that 
it  could  not  affect  what  was  elsewhere  settled 
by  the  Constitution.  Senators  were  chosen  for 
six  years,  and  Representatives  for  two  years 
only.  Blit,  he  added,  "  If  a  State  should  be 
involved  in  war,  and  its  legislature  could  not  as- 
semble, it  might  be  useful;  [or  if]  a  few  powerful 
States  should  combine,  and  make  regulations 
concerning  elections  which  might  deprive  many 
of  the  electors  of  a  fair  exercise  of  their  rights, 
and  thus  injure  the  community.  It  seems  natural 
and  proper  that  every  government  should  have 
in  itself  the  means  of  its  own  preservation.  A 
few  of  the  great  States  might  combine  to  pre- 
vent any  election  at  all."  Mr.' Bloodworth  said, 
"  May  not  their  power  over  the  manner  of  elec- 
tion enable  them  to  exclude  from  voting  every 
description  of  men  they  please?  The  democratic 
branch  is  ...  much  endangered." 

§  276.  Governor  Johnston  said,  w  Congress 
can  have  no  other  power  than  the  States  had. 
The  States,  with  regard  to  elections,  must  be 
governed  by  the  Articles  of  the  Constitution ;  so 
must  Congress."  Mr.  Davie  said,  "  If  Congress 
had  the  power  of  making  the  law  of  elections 


266  LEGISLATIVE  POWERS.  —  SPECIAL. 

operate  throughout  the  United  States,  no  State 
could  withdraw  itself  from  the  national  councils 
without  the  consent  of  a  majority  of  the  members 
of  Congress.  .  .  .  When  the  councils  of  America 
have  this  power  over  elections,  they  can,  in  spite 
of  any  faction  in  any  particular  State,  give  the 
people  a  representation.  .  .  .  Congress  has  ulti- 
mately no  power  over  elections,  but  what  is 
primarily  given  to  the  State  legislatures.  .  .  . 
When  aristocracies  are  formed,  they  will  arise 
within  the  individual  States.  It  is  therefore  ab- 
solutely necessary  that  Congress  should  have  a 
constitutional  power  to  give  the  people  at  large 
a  representation  in  the  government,  in  order  to 
break  and  control  such  dangerous  combinations." 
In  the  South-Carolina  Convention,  General  C.  C. 
Pinckney  said,  "  It  is  absolutely  necessary  that 
Congress  should  have  this  superintending  power, 
lest,  by  the  intrigues  of  a  ruling  faction  in  a 
State,  the  members  of  the  House  of  Represen- 
tatives should  not  really  represent  the  people  of 
the  State ;  and  lest  the  same  faction,  through 
partial  State  views,  should  altogether  refuse  to 
send  Representatives  to  the  general  govern- 
ment." 

§  277.  In  the  New- York  Convention1",  Mr.  Jay, 
afterwards  Mr.  Chief  Justice  Jay,  said,  "Sup- 
pose that,  by  design  or  accident,  the  States 
should  neglect  to  appoint  Representatives,  cer- 
tainly there  should  be  some  constitutional  rem- 
edy." Mr.  Robert  Morris  said,  "It  was  absolutely 


LEGISLATIVE  POWERS.  —  SPECIAL.  267 

necessary  that  the  existence  of  the  general  gov- 
ernment should  not  depend,  for  a  moment,  on 
the  will  of  the  State  legislatures."  In  the  Penn- 
sylvania Convention,  Mr.  "Wilson,  afterwards 
Mr.  Justice  Wilson  of  the  Supreme  Court,  said, 
*  Without  this  clause,  it  [the  government]  would 
not  possess  self-preserving  power.  .  .  .  Some 
States  might  make  no  regulations  at  all  on  the 
subject;  it  is  possible,  also,  that  they  may  make 
improper  regulations.  The  members  of  our  [the 
popular]  branch  of  the  general  legislature  would 
be  the  tenants  at  will  of  the  electors  of  the  other 
branch,  and  the  general  government  would  lie 
prostrate  at  the  mercy  of  the  legislatures  of  the 
several  States." 

§  278.  There  was  no  difference  of  opinion  as 
to  the  extent  or  importance  of  the  power,  but 
only  where  it  should  be  lodged.  The  State- 
rights  party  wanted  it  to  be  vested  in  the  State 
legislatures,  because  they  saw,  that,  if  it  was  so, 
the  new  government  would  be  like  the  Confede- 
ration, entirely  dependent  on  the  States ;  and  the 
other  party  wanted  it  vested  in  Congress,  be- 
cause they  wanted  an  independent  "  firm  national 
government,"  adequate  not  only  to  its  own  self- 
defence  and  preservation,  but  to  all  "  the  exigen- 
cies of  government,  and  the  preservation  of  the 
Union."  All  the  evil  that  one  party  saw  Con- 
gress might  do,  with  this  supervisory  power, 
the  other  party  saw  that  the  State  legislatures 
could  do  without  it.  So  the  question  turned, 


268  LEGISLATIVE  POWERS.  —  SPECIAL. 

not  on  the  nature  of  the  power,  but  on  the  pre- 
dilection of  the  parties  as  to  the  character  of 
the  government  to  be  created.  While  one  party 
wished  so  to  organize  the  government  as  to 
enable  it  to  do  good,  the  other  wished  so  to 
hamper  it  as  to  prevent  its  doing  any  thing,  for 
fear  that  it  might  do  evil. 

§  279.  It  is  perfectly  apparent,  from  these  ex- 
tracts from  the  debates,  that  it  was  well  under- 
stood by  both  parties,  that  the  whole  law  of 
elections,  subject  to  the  provisions  of  the  Con- 
stitution, was  under  the  control  of  Congress. 
The  number,  selection,  and  qualifications  of  elec- 
tors and  elected  were,  so  far  as  they  were  left 
unsettled  by  the  Constitution,  as  much  so  as  any 
other  branches  of  the  subject.  The  equal  rights 
of  the  people  in  the  elective  franchise,  and  the 
just  distribution  of  their  power  of  choice,  were 
held  to  be  within  the  prerogative  of  Congress, 
as  much  as  time  and  place  of  exercising  them. 
A  State  legislature  could  no  more  disfranchise 
three-fourths,  one-half,  or  one-fourth  of  the  adult 
male  citizens  of  the  State,  or  admit  aliens  to 
the  franchise,  without  a  remedy  in  Congress, 
than  they  could  prohibit  an  election  altogether, 
or  substitute  one  of  their  own  for  that  of  the 
people.  The  Constitution  is  the  same  to-day  as 
it  was  then,  notwithstanding  its  infringement 
has  been  so  long  tolerated;  and  it  is  the  duty  of 
Congress  to  see,  that  no  aristocracy,  oligarchy, 
or  privileged  class  is  allowed  to  usurp  the  rights 


LEGISLATIVE  POWERS.  —  SPECIAL.  269 

of  the  people,  or  disfranchise  any  portion,  much 
less  one-half  or  a  majority,  of  their  own  citizens. 
§  280.  This  is  what  rendered  the  clause  so 
important  to  the  people,  in  order  to  enable  their 
government  to  defend  their  own  existence,  and 
to  secure  a  republican  government  to  the  States. 
Of  what  comparative  consequence  was  it,  whether 
the  vote  was  taken  this  week  or  next,  in  the 
shire  town  or  the  half  shire,  by  ballot  or  viva 
voce?  The  great  question  was,  whether  the  peo- 
ple should  have  any  security  for  being  allowed 
to  vote  at  all,  —  the  regulation  of  the  suffrage, 
—  so  that  the  whole  people  should  have  a  free 
and  equal  election.  If  the  matter  was  left  to 
the  uncontrolled  management  of  the  State  legis- 
latures, they  might  limit  the  suffrage  to  a  par- 
ticular class,  a  privileged  order  of  the  people ;  or 
they  might  say  that  they  were  the  people,  and 
take  the  election  into  their  own  hands;  or  they 
might  prohibit  the  election  altogether.  We  have 
have  had  examples  of  each  sort.  In  some  of  the 
Southern  States,  less  than  half,  or  even  a  third, 
of  the  adult  male  citizens  have  been  allowed  to 
participate  in  the  elections.  In  South  Carolina, 
the  legislatures  have  always  taken  the  election 
of  President  and  Yice-President  into  their  own 
hands,  and  excluded  the  people  altogether.  An 
instance  of  the  third  kind  was  when  eleven 
States  withdrew  their  whole  delegation  and  pro- 
hibited any  new  election,  and  insisted  that  it  was 
all  constitutional. 


270  LEGISLATIVE  POWERS.  —  SPECIAL. 

§  281.  After  a  four  years'  war,  to  prove  the 
contrary,  Congress  are  still  in  doubt  whether 
they  have  any  right  to  prevent  the  whole  course 
from  being  re-enacted  next  year,  or  even  from 
being  practised  under  their  own  eyes  to-day. 
Even  now  (1866),  a  large  majority  of  the  free 
adult  male  citizens  are  absolutely  disfranchised 
in  some  of  the  States,  and  a  quarter  or  a  third 
part  of  them  in  several  others,  by  State  laws,  in 
defiance  of  the  Constitution.  These  are  all  loyal 
citizens,  —  loyal  to  the  Constitution  and  to  the 
government.  It  is  true  they  are  not  disfranchised 
avowedly  because  they  are  loyal ;  but  they  might 
be,  just  as  well  as  for  no  reason  at  all;  and  the 
disfranchisement  extended  to  everybody  that  was 
so,  and  include  every  man  in  the  State  who  would 
accept  an  office,  civil  or  military,  serve  as  a  sol- 
dier or  sailor  in  the  army  or  navy  of  the  United 
States,  or  take  an  oath  of  allegiance  to  the  Con- 
stitution. Thus  the  government  is  liable  to  be 
driven  out  of  any  State,  if  they  will  not  execute 
their  own  power  for  their  own  protection,  and 
for  that  of  the  people.  Not  only  the  repub- 
licanism of  the  States,  but  the  republicanism  of 
the  United  States,  and  even  the  existence  of  the 
nation  in  any  form,  is  left  dependent  on  pre- 
vailing factions,  in  these  subordinate  local  organ- 
izations. 

§  282.  By  the  4th  section,  also,  Congress 
may  appoint  the  time  of  their  own  annual  ses- 
sions; and  by  the  6th  determine  the  amount  of 


LEGISLATIVE  POWERS.  —  SPECIAL.  271 

compensation  for  their  own  services,  to  be  paid 
out  of  the  treasury  of  the  United  States.  "When 
the  Constitution  says  a  thing  shall  be  done  w  by 
law,"  it  means  it  shall  be  done  by  Congress; 
for  the  whole  legislative  power,  or  power  to 
make  laws,  is  vested  in  Congress.  Section  7 
vests  in  Congress  the  right,  by  a  two-thirds  vote 
of  each  House,  by  yeas  and  nays  entered  on 
their  respective  Journals,  to  overrule  the  Presi- 
dent's veto,  or  objections  to  the  passage  of  any 
law  sent  to  him  for  his  approval. 


CHAPTER   XIX. 

LEGISLATIVE  POWERS.  —  SPECIAL. 

§  283.  THE  8th  section,  on  account  of  its 
length,  the  variety  and  importance  of  its  sub- 
jects, and  still  more  on  account  of  the  use  that 
has  been  made  of  it,  requires  particular  atten- 
tion. It  was  well  observed  by  the  "  Federalist," * 
"  That  it  is  both  unwise  and  dangerous  to  deny 
to  the  Federal  government  an  unconfined  au- 
thority, in  respect  to  all  those  objects  which  are 
intrusted  to  its  management.  ...  A  govern- 
ment, the  Constitution  of  which  renders  it  unfit 
to  be  intrusted  with  all  the  powers  which  a  free 
people  ought  to  delegate  to  any  government,  would 
be  an  unsafe  depository  of  the  NATIONAL  INTER- 
ESTS." Notwithstanding  this,  the  State-rights 
school  of  politicians  have  constantly  held,  con- 
trary to  the  introductory  clause  of  the  Consti- 
tution, that  the  objects  of  the  government  were 
few  and  narrowly  limited,  and  that  the  means 
given  for  their  execution  were  only  those  with- 
out which  they  could  not  be  executed.  Mr. 

*  No.  23. 
[272] 


LEGISLATIVE  POWERS.  —  SPECIAL.  273 

Jefferson  does  not  hesitate  to  say,  "  It  was  in- 
tended to  lace  them  up  strictly  within  the  enu- 
merated powers,  and  those  without  which,  as 
means,  those  powers  could  not  be  carried  into 
effect."  l 

§  284.  By  enumerated  powers?  he  and  all  his 
followers  mean  those  mentioned  in  this  section; 
and,  by  "  necessary  and  proper "  means,  they 
understand  those  only  without  which  the  enu- 
merated powers  themselves  would  be  wholly  void. 
This  view  of  the  Constitution  has  been  main- 
tained mainly  by  two  wholly  gratuitous  and  false 
assumptions.  1st,  That  the  introductory  or  enact- 
ing clause  is  no  part  of  the  Constitution;  and, 
2d,  That  this  8th  section  is  an  enumeration  of 
the  powers  of  the  government.  They  are  both 
gratuitously  assumed,  because  the  Constitution 
affords  no  foundation  for  either.  They  are  both 
false,  because  the  direct  assertions  of  the  Con- 
stitution contradict  them.  In  regard  to  the  first, 

1  Opinion  on  the  Bank,  February,  1791. 

2  Mr.  Monroe  says  (Message,  May  4,  1822),  "  The  powers  specifically 
granted  to  Congress  are  what  are  called  '  the  enumerated  powers,'  and  are 
numbered  in  the  order  in  which  they  stand;  among  which,  that  con- 
tained in  the  first  clause  [taxation]   holds  the  first  place  in  point  of 
importance." 

Mr.  Madison  says  (Veto  Message,  March  3,  1817),  "  The  legislative 
powers  vested  in  Congress  are  specified  and  enumerated  in  the  8th  sec- 
tion of  the  first  Article  of  the  Constitution ;  and  it  does  not  appear,  that 
the  power  proposed  to  be  exercised  by  the  bill  is  among  the  enumerated 
powers." 

Mr.  Jefferson  says  (Opinion  on  the  Bank,  Feb.  15,  1791),  "  The 
powers  specially  enumerated  are :  1st,  The  power  to  lay  taxes  for  the 
purpose  of  paying  the  debts  of  the  United  States.  .  .  .  2d,  To  borrow 
money;  3d,  To  regulate  commerce,"  &c.  These  are  powers  of  Con- 
gress in  the  exact  order  in  which  they  stand  in  the  8th  section. 

18 


274  LEGISLATIVE  POWERS.  —  SPECIAL. 

it  has  been  sufficiently  shown,  that  the  introduc- 
tory or  enacting  clause  is  in  the  Constitution, 
and  a  part  of  the  supreme  law  of  the  land.1 
The  second  will  be  examined  here  and  now. 

§  285.  This  section,  though  forming,  gram- 
matically, but  a  single  sentence,  is  divided  into 
eighteen  distinct  members  of  a  sentence.  As 
commonly  printed,  and  doubtless  by  authority, 
though  not  of  the  Convention  or  of  the  people, 
these  distinct  members  have  been  marked  by 
numbers  from  one  to  eighteen  inclusive,  and 
thus  become  enumerated.  But  this  numerical 
designation  of  the  different  members  of  this 
sentence  was  not  in  the  original,  and  forms  no 
part  of  the  Constitution,  but  is  altogether  an 
interpolation.  The  only  authorized  numerical 
division  of  the  Constitution  is  into  Articles  and 
sections.  Upon  this  interpolation  is  founded 
the  idea  of  enumerated  powers.  And  upon  the 
unauthorized  rejection  of  the  enacting  clause, 
containing  all  the  objects  and  duties  of  the  gov- 
ernment, the  idea  is  founded  that  here  are  the 
actual  powers  of  the  government;  whereas  the 
section  itself  declares  them  to  be  only  the  special 
powers  of  Congress,  or  that  portion  of  the  gen- 
eral power  of  the  government,  which,  on  dis- 
tribution, falls  to  them  as  one  of  the  departments 
of  the  government.  So  that  the  common  phrase, 
the  enumerated  powers  of  the  government,  as  ap- 
plied to  this  section,  involves  two  manifest  errors : 

1  Ante,  p.  76. 


LEGISLATIVE  POWERS.  —  SPECIAL.  275 

1st,  That  these  powers  are  actually  enumerated, 
or  called  enumerated,  in  some  part  of  the  Con- 
stitution ;  and,  2d,  That  they  are  the  powers 
of  the  government  generally,  when  they  are 
expressly  specified  as  powers  of  the  legislative 
department  only,  in  the  same  manner  as  other 
powers  are  called  the  powers  of  the  executive  or 
judicial  department. 

§  286.  And  they  are  but  a  portion  even  of 
these ;  for  many  more  than  are  mentioned  in  this 
section  are  specified  in  other  sections  as  belong- 
ing to  Congress,  or  necessarily  devolving  on 
them  as  the  legislative  department.  Yet  this 
unauthorized  enumeration  of  a  part  only  of  the 
specific  powers  of  one  department,  has  been 
represented  and  treated  as  an  exact  specification 
of  all  the  powers  of  the  government,  been  called 
the  enumerated  powers,  and  made  to  officiate, 
when  occasion  required,  as  an  absolute  limitation 
of  their  rights  and  duties.  Indeed,  the  single 
fact,  that  the  Constitution  confers  some  powers 
in  particular,  has  been  made  use  of  as  an  argu- 
ment to  prove  that  it  could  confer  no  powers  in 
general,  covering  those  particulars. 

§  287.  Mr.  Jefferson  says,1  "To  consider  the 
.  .  .  phrase  [to  provide  for  the  general  wel- 
fare] ...  as  giving  a  distinct  and  independent 
power,  .  .  .  would  render  all  the  .  .  .  enumera- 
tions of  power  completely  useless.  It  would 
reduce  the  whole  instrument  to  a  single  phrase, 

1  Ubi  sup. 


276  LEGISLATIVE  POWERS. —  SPECIAL. 

— that  of  instituting  a  Congress  [or  government] 
with  power  to  do  whatever  would  be  for  the  good 
of  the  United  States."  Ergo,  the  argument  is, 
the  Constitution  contains  no  such  power.  Mr. 
Madison  says,1 "  The  terms  '  the  common  defence 
and  general  welfare,'  embracing  every  object  and 
act  within  the  purview  of  a  legislative  trust," 
would  render  "  the  special  "and  careful  enumera- 
tion of  powers  .  .  .  nugatory  and  improper." 
The  whole  school  of  State-rights  politicians,  in- 
cluding Monroe,  Calhoun,  and  Jefferson  Davis, 
have  reasoned  in  the  same  way. 

§  288.  That  such  an  argument  should  have 
been  used  and  pressed  by  the  authors  of  the 
Kentucky  and  Virginia  Resolutions  of  1798  and 
1799,  and  maintained  by  their  followers,  is  no 
matter  of  wonder.  It  was  necessary  for  their 
purposes;  and  it  was  therefore,  in  their  view, 
politic  and  expedient  to  sustain  it.  But  the  idea 
has  unfortunately  higher  authority  than  either 
or  all  of  them.  Alexander  Hamilton,  in  the  83d 
number  of  the  "  Federalist,"  says,  "  The  plan  of 
the  Convention  declares,  that  the  power  of  Con- 
gress, or  in  other  words  of  the  national  legisla- 
ture^ shall  extend  to  certain  enumerated  cases. 
This  specification  of  particulars  evidently  ex- 
cludes all  pretension  to  a  general  legislative 

1  Veto  Message,  March  3,  1817.  —  He  says,  in  his  speech  on  the  Cod- 
fishery  Bill,  in  February,  1792,  "  This  is  not  an  indefinite  government, 
deriving  its  powers  from  the  general  terms  prefixed  to  the  specified  powers ; 
but  a  limited  government,  tied  down  to  the  specified  powers,  which 
explain  and  define  the  general  terms." 


LEGISLATIVE  POWERS.  —  SPECIAL.  277 

authority;  because  an  affirmative  grant  of  spe- 
cial powers  would  be  absurd,  as  well  as  useless, 
if  a  general  authority  was  intended." * 

§  289.  This  evidently  refers  to  the  different 
parts  of  the  first  Article,  where  "  all  the  legis- 
lative powers"  of  the  government,  and  subse- 
quently certain  specific  powers,  are  vested  in 
Congress.  It  was  not  used  by  him  in  the  way 
of  argument  against  the  general  legislative 
powers  of  the  government,  arising  from  the  fact 
that  particular  powers  are  also  delegated ;  for 
that  subject  was  not  then  under  discussion.  He 
was  arguing  against  an  improper  use,  made  by 
his  opponents,  of  the  maxim,  "that  a  specification 
of  particulars  is  an  exclusion  of  generals ;  "  and, 
after  proving  their  error,  he  proceeds  as  above, 
in  order  to  illustrate  incidentally  his  own  idea  of 
what  would  be  a  proper  use  of  that  maxim.  It 
should  be  remembered,  too,  that  he  was  anxiously 

1  And  yet  he  says,  in  his  Report  on  Manufactures,  Dec.  5, 1791,  "  The 
objects  to  which  it  [the  revenue]  may  be  appropriated  are  no  less  com- 
prehensive than  the  payment  of  the  public  debts,  and  the  providing  for 
the  common  defence  and  general  welfare.  .  .  .  The  phrase  is  as  compre- 
hensive as  any  that  could  have  been  used ;  because  it  was  not  fit  that  the 
constitutional  authority  of  the  Union,  to  appropriate  its  revenues,  should 
have  been  restricted  within  narrower  limits  than  the  general  welfare ;  and 
because  this  necessarily  embraces  a  vast  variety  of  particulars,  which  are 
susceptible  neither  of  specification  nor  definition.  ...  A  power  to  appro- 
priate money  with  this  latitude  ...  is  granted,  too,  in  express  terms." 

If  a  specification  of  particulars  excludes  generals,  then  the  Consti- 
tution, by  granting  the  power  to  punish  in  one  class  of  cases  only,  has 
prohibited  Congress  from  punishing  in  any  other  cases.  —  Per  Mr.  Justice 
Johnson,  Opinion  of  the  Court  in  Anderson  v.  Dunn,  6  Wheat.,  204. 
"  The  idea  that  the  express  grant  in  one  class  of  cases  repelled  the  as- 
sumption of  the  punishing  power  in  any  other,  never  occurred  to  any 
one."  —  Ibid. 


278  LEGISLATIVE  POWEKS.  —  SPECIAL. 

laboring  to  convince  the  people,  against  all  their 
prejudices,  that  Congress  had  not  too  much 
power.  But,  after  all,  the  marvel  is,  that  such  a 
sentiment  could  have  escaped  from  his  pen,  at 
any  time,  under  any  circumstances,  and  for  any 
purpose;  since  he  himself  thereby  committed  a 
greater  error  than  that  of  which  he  had  just  con- 
victed his  opponents. 

§  290.  At  the  moment  it  was  written,  there 
was  not  a  Constitution  in  the  land  that  was 
not  formed  in  just  that  way:  vesting,  first,  the 
general  legislative  power  in  the  appropriate 
department;  and  then,  in  subsequent  Articles, 
specifying  particular  things  as  within  their  au- 
thority. Even  Mr.  Madison  says,  "  Nothing  is 
more  natural  or  common  than  first  to  use  a  gen- 
eral phrase,  and  then  to  explain  or  qualify  it  by 
a  recital  of  particulars." l  Not  that  the  particu- 
lars cover  the  whole  of  the  generals,  or  add 
any  thing  to  them.  They  only  assist  in  expound- 
ing them,  by  affording  specimens  of  such  as 
disclose  the  nature  and  character  of  those  of 
which  the  generals  are  composed. 

§  291.  By  the  constitution  of  New  Hamp- 
shire, "  The  supreme  legislative  power  .  .  .  shall 
be  vested  "  in  the  General  Court,  to  whom  w  full 
power  and  authority  are  hereby  given  and  grant- 
ed ...  to  make,  ordain,  and  establish  all  man- 
ner of  wholesome  and  reasonable  orders,  laws, 
statutes,  ordinances,"  in  the  broadest  possible 

1  Federalist,  No.  41. 


LEGISLATIVE  POWERS.  —  SPECIAL.  279 

terms,  w  as  they  may  judge  for  the  benefit  and 
welfare  of  the  State."  Notwithstanding  this 
plenary  grant  of  general  legislative  authority, 
the  same  constitution  specifies  in  particular 
many  items,  which  are  all  included  in  the  gen- 
eral grant,  and  would  have  been  equally  avail- 
able if  not  individually  mentioned  at  all.  For 
instance,  "  to  erect  and  constitute  judicatories, 
and  courts  of  record  or  other  courts ;  ...  to 
provide  .  .  .  for  ...  all  civil  and  military  offi- 
cers," and  set  forth  their  powers  and  duties,  oaths, 
&c.;  "to  impose  fines,  mulcts,  imprisonments,  and 
other  punishments ; "  "  to  impose  and  levy  .  .  . 
assessments,  rates,  and  taxes,"  &c.,  &c. ;  specify- 
ing, in  particulars  almost  without  number,  items 
of  power  and  duty  of  the  legislative  department, 
all  of  which  were  before  included  in  their  gene- 
ral legislative  authority. 

§  292.  The  constitution  of  Massachusetts  con- 
ferred the  power  of  general  legislation  in  nearly 
the  same  broad  and  unqualified  terms,  and  is 
equally  filled  with  special  provisions,  confer- 
ring specific  powers  on  that  department.  We 
might  go  through  the  whole  list  of  State  con- 
stitutions with  a  similar  result,  including  the 
Confederation,  by  which  the  Union  was  then 
nominally  held  together.  But  the  most  striking 
example,  in  referejice  to  the  application  of  the 
maxim  in  question,  is  his  (Mr.  Hamilton's) 
own  draft  of  a  Constitution  for  the  United 
States,  presented  to  the  Convention  in  his  speech 


280  LEGISLATIVE  POWERS.  —  SPECIAL. 

of  June  18,  1787.  It  is  there  provided,  that 
w  the  legislature  of  the  United  States  shall  have 
power  to  pass  all  laws  which  they  shall  judge 
necessary  to  the  common  defence  and  safety,  and 
to  the  general  welfare  of  the  Union."  Special 
power,  however,  is  elsewhere  given  to  the  legis- 
lature to  "  provide  for  the  .  .  .  elections  of  Rep- 
resentatives, apportioning  them  in  each  State," 
and  for  the  "  elections  of  Senators; "  "to  provide, 
by  permanent  laws,  such  regulations  as  may  be 
necessary  for  the  more  orderly  election  of  Presi- 
dent;" to  "admit  new  States  into  the  Union;" 
and  to  do  divers  other  things  therein  specially 
named. 

§  293.  If  the  test  should  be  applied  to  every 
Constitution  made  since  that  time,  the  result 
would  be  the  same.  The  constitution  of  every 
State  in  the  Union,  in  force  to-day,  would  pre- 
sent the  same  phase.  The  maxim  in  question  is 
supposed  to  have  been  founded  on  the  famous 
saying  of  Lord  Bacon,  that  "  exception  strength- 
ens the  force  of  law,  in  cases  not  excepted  ;  and 
enumeration  weakens  it,  in  cases  not  enumer- 
ated." But,  whatever  may  be  considered  its 
origin,  it  can  have  no  applicability  to  this  part 
of  the  Constitution  of  the  United  States.  The 
1st  section  vests  "  all  the  legislative  powers " 
of  the  Constitution  in  Congress,  and  subsequent 
sections  vest  particular  powers  in  the  same  body. 
These  grants  of  power  may  be  repetitions,  redu- 
plications, or  pleonasms,  with  respect  to  each 


LEGISLATIVE  POWERS.  —  SPECIAL.  281 

other ;  but  no  one  or  more  of  them,  however 
comprehensive  or  restrictive,  can  supersede  or 
abrogate  any  other.  It  would  be  as  sensible  to 
contend  that  the  commercial  power  superseded 
the  money  and  currency  powers,  or  the  war 
power  the  army  and  navy  power,  as  it  would  be 
to  insist  that  the  power  w  to  constitute  tribunals  " 
abrogated  the  power  "  to  establish  justice,"  and 
the  power  "  to  declare  war  "  the  power  of  w  com- 
mon defence."  And  either  of  them  would  be  as 
sensible  as  it  would  be  to  say,  that  the  special 
powers  supersede  the  duty  of  providing  for  the 
safety,  welfare,  and  liberty  of  the  people ;  or  that 
the  safety,  welfare,  and  liberty  of  the  people,  are 
only  to  be  sought  and  secured  through  the  par- 
ticular regulations  specifically  authorized  and 
prescribed. 

§  294.  It  is  difficult  to  consider  a  suggestion 
of  the  idea,  that  special  grants  of  power  to  Con- 
gress were  intended  as  a  full  specification  of  the 
particulars  of  the  rights  and  duties  of  the  gov- 
ernment under  a  Constitution  avowedly  ordained 
"in  order  to  form  a  more  perfect  union,  estab- 
lish justice,  insure  domestic  tranquillity,  provide 
for  the  common  defence,  promote  the  general 
welfare,  and  secure  the  blessings  of  liberty," — as 
strictly  compatible  with  honesty  of  purpose  in 
reasoning.  They  do  not  purport  to  be  a  specifi- 
cation for  any  purpose,  or  the  particulars  of  any 
whole.  They  are  not  embodied  or  aggregated 
for  any  purpose,  but  scattered  throughout  the 


282  LEGISLATIVE  POWERS.  —  SPECIAL. 


whole  instrument.  The  8th  section  cannot  be 
such  specification,  because  it  contains  but  a  frac- 
tion of  the  particulars  themselves.  It  requires 
all  the  parts  to  constitute  a  whole;  and,  if  any 
smaller  number  of  parts  are  expected  to  limit, 
restrict,  or  in  any  respect  change  the  form  of 
that  whole,  a  special  authority  must  be  shown 
for  that  purpose. 

§  295.  But  what  renders  it  absolutely  impos- 
sible that  any  or  all  the  special  powers  should 
have  been  intended  to  limit  the  general  powers, 
is  that  the  special  powers  themselves  expressly 
reiterate  and  confer  all  the  general  powers.  The 
8th  section  authorizes  Congress  "  to  pay  the 
debts,  and  provide  for  the  common  defence  and 
general  welfare,  of  the  United  States,"  which 
is  an  abridgment  or  epitome  of  all  the  avowed 
purposes  of  the  Constitution,  and  of  all  the 
legitimate  purposes  of  any  free  government. 
The  last  clause  of  the  section  is,  if  possible,  still 
more  explicit,  expressly  giving  Congress  power 
"  to  make  all  laws  ...  necessary  and  proper  for 
carrying  into  execution  the  .  .  .  powers  vested 
...  in  the  government  of  the  United  States,  or 
in  any  department  or  officer  thereof."  The  gen- 
eral legislative  power  is  here  renewed  and  again 
vested  in  Congress,  in  as  broad  and  comprehen- 
sive terms  as  it  was  originally  granted  in  the  1st 
section,  under  the  name  of  "  all  legislative  pow- 
ers "  of  the  Constitution.  So  that  there  can  be 
no  ground  for  an  argument,  that,  in  this  place, 


LEGISLATIVE  POWERS.  —  SPECIAL.  283 

a  specification  of  particulars  is  an  exclusion  of 
generals. 

§  296.  All  the  express  restrictions  on  the 
powers  of  Congress  go  far  to  prove  the  exist- 
ence of  the  power  restricted;  for  who  will  charge 
the  framers  of  our  Constitution,  or  the  Ameri- 
can people,  with  the  absurdity  of  restricting  a 
non-existing  power?1  These  restricted  powers 
will  be  usually  found  among  the  more  general 
and  undefined  legislative  powers  of  the  govern- 
ment. The  particulars  under  this  head  are 
numerous  and  satisfactory.  We  will  cite  a  few 
of  them. 

§  297.  By  the  4th  section,  Congress  shall  meet 
annually  "  on  the  first  Monday  in  December,  un- 
less they  shall  by  law  appoint  a  different  day." 
This  implies  that  Congress  have  the  power  to 
appoint  any  day  they  please  for  their  annual 
sessions;  and  they  have  practised  accordingly. 
"Where  is  the  power  delegated?  Certainly  there 
is  no  special  and  particular  provision  in  the  Con- 
stitution to  this  effect.  By  section  9,  "  The  mi- 
gration or  importation  of  persons  .  .  .  shall  not 
be  prohibited  by  Congress "  for  twenty  years ; 
which  implies  that  both  may  be  done  afterwards : 
and  they  have  been  done.  By  what  right?  If 
it  be  said  by  the  commercial  power,  it  may  be 

1  "It  would  be  absurd  ...  to  except  from  a  granted  power  that 
which  was  not  granted,  or  that  which  the  words  did  not  comprehend." 
—2  Story's  Com.,  508.  4.  r, 

"  It  is  a  rule  of  construction,  that  exceptions  from  a  power  mark  its 
extent."  — Per  Cur.,  in  Gibbons  v.  Ogden,  9  Wheat.  R.,  191. 


284  LEGISLATIVE  POWERS.  —  SPECIAL. 

added,  that  the  commercial  power  itself  is  but 
a  fraction  of  the  general  power  which  regulates 
the  foreign  intercourse  of  the  people,  in  order 
to  provide  for  the;  "  defence  and  welfare  "  of  the 
United  States.  The  writ  of  habeas  corpus  was 
a  common-law  right,  everywhere  respected  in 
the  United  States  before  and  at  the  time  of  the 
adoption  of  the  Constitution,  for  the*  protection 
of  personal  liberty.  By  this  9th  section,  it  is 
in  eifect  made  perpetual,  with  the  liberty  it 
protects,  for,  if  the  right  "  shall  not  be  suspend- 
ed "  or  temporarily  abrogated,  a  fortiori  it  shall 
not  be  repealed  or  permanently  abrogated.  This 
restriction  is  certainly  applicable  to  Congress  as 
well  as  the  executive,  and  every  body  else  hav- 
ing any  control  over  the  subject.  But  what 
special  power  is  given  to  Congress  over  the 
habeas  corpus,  other  than  what  is  included  in 
the  general  legislative  power  of  the  government? 
§  298.  w  iSTo  bill  of  attainder,  or  ex  post  facto 
law,  shall  be  passed."  According  to  the  best 
authorities,  these  are  not  rightfully  within  the 
category  of  legislative  powers  at  all.1  But  the 
British  Parliament  had  often  passed  such  stat- 
utes before  our  Revolution,  and  many  of  our 
Revolutionary  legislatures  afterwards  ;  so  it  was 

1  "  A  law  that  punishes  a  citizen  for  an  innocent  action,  or,  in  other 
words,  for  an  act  which,  when  done,  was  in  violation  of  no  existing  law  ; 
a  law  that  destroys  or  impairs  the  lawful  private  contracts  of  citizens ;  a 
law  that  makes  a  man  judge  in  his  own  cause ;  or  a  law  that  takes  prop- 
erty from  A,  and  gives  it  to  B,  —  is  contrary  to  the  great  first  principles  of 
the  social  compact,  and  cannot  be  considered-  as  a  rightful  exercise  of  legis- 
lative authority."  —  Calder  v.  Bull,  3  Ball.  Rep.,  386,  per  Chase,  J. 


LEGISLATIVE  POWERS.  —  SPECIAL.  285 

adjudged  wise,  ex  dbundanti  cautela,  to  insert 
this  express  restriction,  lest  a  similar  power 
should  be  wrongfully  claimed,  not  by  any  speci- 
fic grant  certainly,  but  under  the  general  au- 
thority of  the  Constitution.  But  the  wisdom 
and  expediency  of  even  this  restriction,  unneces- 
sary though  it  may  be  held  to  have  been,  car- 
ries with  it  a  broad  and  irrefragable  implication 
in  favor  of  the  validity  of  any  other  statute, 
coming  within  the  rightful  purview  of  legiti- 
mate legislation,  and  free  from  any  such  restric- 
tion. 

§  299.  "No  money  shall  be  drawn  from  the 
treasury,  but  in  consequence  of  appropriations 
made  by  law."  Congress  then,  who,  by  being 
made  the  legislative  department  of  the  govern- 
ment, make  the  law,  may  appropriate  the  money 
in  the  treasury  to  any  object  they  please,  within 
the  range  of  the  general  purposes  of  the  Con- 
stitution. "No  title  of  nobility  shall  be  grant- 
ed," and  no  religious  test  required,  &c.  How 
could  it  have  been,  independent  of  this  prohibi- 
tion? No  special  grant  confers  such  a  power  on 
any  department  of  the  government.  Other  pro- 
hibitions in  the  9th  section,  as  in  regard  to  capi- 
tation taxes,  duties  on  exports,  appropriations  of 
money,  &c.,  are  restrictions  on  express  powers 
specially  delegated. 

§  300.  The  first  Amendment  is  even  more 
explicitly  to  our  purpose  than  any  of  the  above. 
It  relates  to  the  establishment  and  free  exercise 


286  LEGISLATIVE  POWERS.  —  SPECIAL. 


of  religion,  freedom  of  speech  and  of  the  press, 
peaceable  assemblies  of  the  people,  and  the  right 
to  petition  the  government.  Which  of  the  enu- 
merated powers,  as  they  have  been  insidiously 
called,  or  what  other  specific  power  mentioned 
in  any  part  of  the  Constitution,  authorizes  Con- 
gress to  touch  any  one  of  these  subjects,  for 
any  purpose  whatever?  Why,  then,  restrict  the 
power?  So  of  "the  right  to  keep  and  bear 
arms,"  and  divers  other  valuable  common-law 
rights.  Obviously  they  are  all  carefully  guard- 
ed; because,  under  the  general  powers  of  the 
government  to  provide  for  the  common  defence, 
the  general  welfare,  and  the  blessings  of  lib- 
erty, and  to  do  any  thing  necessary  and  proper 
for  those  purposes,  nothing  could  be  said  to  be 
beyond  the  legitimate  claims  of  an  agent  charged 
with  these  duties. 

§  301.  Mr.  Madison  said,  in  the  speech  above 
quoted,  "  If  Congress  can  employ  money  indefi- 
nitely to  the  general  welfare,  and  are  the  sole 
and  supreme  judges  of  the  general  welfare,  they 
may  take  the  care  of  religion  into  their  own 
hands.  They  may  appoint  teachers  in  every  State, 
county,  and  parish,  and  pay  them  out  of  their 
public  treasury;  they  may  take  into  their  own 
hands  the  education  of  children,  establishing  in 
like  manner  schools  throughout  the  Union;  they 
may  assume  the  provision  for  the  poor ;  they 
may  undertake  the  regulation  of  all  roads  other 
than  post-roads;  in  short,  every  thing,  from  the 


LEGISLATIVE  POWERS.  —  SPECIAL.  287 

highest  object  of  State  legislation,  down  to  the 
most  minute  object  of  police,  would  be  thrown 
under  the  power  of  Congress;  for  every  object 
I  have  mentioned  would  admit  the  application  of 
money,  and  might  be  called,  if  Congress  pleased, 
provisions  for  the  general  welfare."  As  Con- 
gress have,  by  express  grant,  unlimited  power 
to  levy  and  borrow  money,  and  appropriate  it  to 
"  the  common  defence  and  general  welfare," 
what  could  be  more  natural  or  proper  than  the 
restrictions,  in  these  Amendments,  of  this  great 
power,  if  the  people  desired  so  to  restrict  it? 
But  if,  as  Mr.  Madison  attempts  to  argue,  in  the 
face  of  the  express  words  of  the  instrument, 
the  Constitution  delegates  no  such  power,  what 
could  be  more  absurd,  and  even  ridiculous,  than 
to  enact  restrictions? 

§  302.  Thus  the  plenary  powers  of  general 
legislation  for  the  public  welfare,  as  embraced 
in  the  enacting  clause,  for  the  great  purposes  of 
government,  are  vested  in  Congress,  and  are 
limited  only  by  the  laws  of  God,  the  principles 
of  free  government,  and  the  express  or  implied 
restrictions  of  the  Constitution.  These  two  false 
and  groundless  assumptions  —  to  wit,  that  the 
first  paragraph  is  no  part  of  the  Constitution 
or  supreme  law;  and  that  the  8th  section  is  an 
actual  specification,  by  way  of  eminence,  the 
enumerated  powers  of  the  government  —  form 
the  whole  foundation,  and  only  apology  for  that 
stupendous  perversion  of  the  Constitution  known 


:IAL. 


288  LEGISLATIVE  POWERS.  — SPEC 


as  the  State-rights  doctrine,  which  has  upheld 
slavery  and  culminated  in  rebellion,  both  equally 
opposed  to  the  whole  letter  and  spirit  of  the 
Constitution. 


CHAPTEK    XX. 

LEGISLATIVE  PO WEES.  —  SPECIAL. 
The  Financial  Powers. 

§  303.  THE  8th  section  begins,  "  The  Congress 
shall  have  power,"  &c.  This  vests  certain  pow- 
ers, afterwards  named,  in  Congress,  which  had 
already  been  designated  as  the  depositary  of  "  all 
the  legislative  powers "  of  the  government.  It 
does  not  purport  to  be  a  catalogue,  a  specifica- 
tion, or  even  an  epitome,  of  those  powers,  and  least 
of  all  an  enumeration  of  them.  It  simply  grants 
certain  powers,  therein  named,  to  Congress;  as 
other  sections  preceding  and  following  it  have 
granted  other  powers  to  them,  more  in  number, 
and  some  of  them  of  much  greater  importance, 
than  some  of  these.  Here  is  not  only  no  dis- 
paragement of  others  not  herein  named,  vested 
in  the  government  generally,  or  in  Congress  par- 
ticularly ;  but  there  is  at  the  end  an  express 
mention  made  of  w  all  other  powers  vested  by 
this  Constitution  in  the  government  ...  'or  any 
department  ...  thereof,"  showing  with  certain- 
ty that  there  are  w  other  powers  "  vested  in  the 

19  [289] 


290  LEGISLATIVE  POWERS.  — SPECIAL. 

government  and  in  Congress :  for  altihe  powers 
of  the  government  are  to  be  executed  through 
the  departments,  and  the  appropriate  portion  of 
them  inures  directly  to  Congress.  So  it  is  abso- 
lutely impossible  that  this  8th  section  should  be 
either  an  enumeration  or  a  specification  of  the 
powers  of  either,  because  it  expressly  recognizes 
others  of  both  kinds. 

§  304.  The  first  item  is  in  three  parts:  1st, 
"  To  lay  and  collect  taxes,  duties,  imposts,  and 
excises ;  "  2d,  "  To  pay  the  debts,  and  provide  for 
the  common  defence  and  general  welfare,  of  the 
United  States ; "  3d,  "  But  all  duties,  imposts, 
and  excises  shall  be  uniform  throughout  the 
United  States."  The  second  item  is,  "  To  bor- 
row money  on  the  credit  of  the  United  States." 
These  two  items  constitute  the  principal  sources 
of  the  revenue,  or  the  pecuniary  means  of  sus- 
taining the  government  and  accomplishing  the 
objects  for  which  it  was  ordained  and  estab- 
lished.1 They  are  substantially  unlimited.  The 
power  of  borrowing  is  wholly  so.  They  may 
borrow  at  any  time,  in  any  manner,  anywhere, 
of  anybody,  to  any  amount,  and  on  any  terms, 
as  to  security,  payment,  or  interest.  They  may 
levy  and  collect  taxes,  duties,  imposts,  and  ex- 

1  Revenue  lies  at  the  foundation,  and  constitutes  a  most  important 
part,  of  all  the  powers  of  the  government.  Without  it  they  could  not  pro- 
vide for  the  common  defence,  promote  the  general  welfare,  secure  the 
blessings  of  liberty,  or  even  continue  their  own  existence.  The  money 
power  might  well  have  been  considered  under  this  head ;  but  we  have 
chosen  to  place  it  rather  under  the  next,  or  commercial  power. 


LEGISLATIVE  POWERS.  —  SPECIAL.  291 

cises,  to  any  amount,  at  any  time,  on  persons, 
property,  or  estate,  for  any  purpose  which  the 
government  is  authorized  to  promote,  and  in  any 
manner;  with  only  the  three  qualifications  of 
uniformity,  apportionment,  and  exemption,  which 
will  be  considered  under  the  next  section. 

§  305.  Attempts  have  been  made  to  limit  the 
power  to  the  single  purpose  of  raising  revenue ; 
but  they  have  uniformly  failed.  The  first  statute 
on  the  subject  expressly  recognized  in  its  pre- 
amble the  encouragement  of  manufactures  as 
one  of  the  objects  in  view;  and  subsequent  Acts 
have  been  adjusted  to  the  interests  of  commer- 
cial, agricultural,  and  manufacturing  industry, 
as  well  as  to  revenue.  When  money  is  collected 
and  received  into  the  treasury,  it  can  only  be 
drawn  out  "  in  consequence  of  appropriations 
made  by  law;"1  and  Congress  can  pass  no  law 
on  this  or  any  other  subject,  but  such  as  is  cal- 
culated to  accomplish  some  of  the  avowed  pur- 
poses for  which  the  Constitution  was  made.  So 
that  all  appropriations  must  be  made  w  for  carry- 
ing into  execution  the  powers  vested  in  tne  gov- 
ernment." The  design  or  object  of  a  tax  may 
be  to  foster  and  protect  the  subject  on  which  it 
is  levied,  or  to  limit  and  destroy  it  or  any  of  its 
adjuncts.  "  The  power  to  tax  involves  the  power 
to  destroy."2 

§  306.  This  power  of  taxation,  including  all 
the  forms  Of  levying,  the  selection  of  subjects, 

1  Section  9.  2  per  Marshall,  C.  J.,  4  Wheat.  R.,  431. 


292  LEGISLATIVE  POWERS.  —  SPECIAL. 

the  amount  of  assessment,  and  the  mode  of  col- 
lection, with  its  universality  and  supremacy,  must 
be  a  very  formidable  instrument  in  the  hands  of 
the  government,  for  regulating  and  controlling 
all  the  subordinate  agencies  in  the  State.  Mr. 
George  Mason  warned  the  Yirginians,  before 
the  Constitution  was  adopted,  that  "  this  power, 
being  unconfined  and  without  any  kind  of  con- 
trol, must  carry  every  thing  before  it,"  and  was 
"  calculated  to  annihilate  totally  the  State  gov- 
ernments." The  United  States,  however,  have 
never  made  use  of  their  unlimited  and  uncon- 
trollable power  in  this  respect,  to  control  or  em- 
barrass the  operations  of  the  State  governments, 
even  when  those  operations  were  unconstitu- 
tional, and  intended  directly  to  counteract  their 
own  proceedings.  But  some  of  the  States  have 
instructed  them  by  examples,  which  might  be 
followed  as  precedents,  of  the  manner  in  which 
it  might  be  rendered  very  efficient.  Witness  the 
attempts  to  drive  the  United-States  Bank  and 
the  United-States  Loan  beyond  their  respective 
jurisdictions.1 

§  307.  The  words  of  the  second  and  third  lines 
of  the  section,  w  to  pay  the  debts,  and  provide 
for  the  common  defence  and  general  welfare,  of 
the  United  States,"  demand  more  special  atten- 
tion. The  principle  avocation  of  the  State-rights 

i  See  McCulloch  v.  Maryland,  4  Wheat.  B. ;  Osborn,  &c.,  v.  The  Bank 
of  the  United  States,  9  Wheat ;  Weston,  &c.,  v.  City  Council  of  Charles- 
ton, 2  Peter's  Rep. 


LEGISLATIVE  POWERS.—  SPECIAL.  293 

politicians  has  always  been  to  construe  away  the 
provisions  of  the  Constitution;  and  they  have 
not  been  more  sorely  oppressed  by  any  of  them 
than  by  this.  Consequently,  their  labors  have 
been  most  abundantly  bestowed  here.  The  dis- 
cussions that  have  arisen  out  of  this  disposition 
of  the  party  have  usually  been  of  the  character 
which  military  men  would  call  a  war  of  posts. 
The  Constitution,  at  its  origin,  found  the  State 
governments,  whether  by  right  or  by  wrong,  in 
the  actual  possession  of  the  principal  part  of  the 
field,  and  very  little  disposed  to  give  up  any 
portion  of  it.1 

§  308.  Scarcely  any  important  law  for  national 
purposes,  before  the  rebellion  of  1860,  was  passed 
without  encountering  objections  grounded  on  the 
assumed  deficiency  of  power  in  the  government. 
The  discussions  have  generally  been  so  man- 
aged as  to  make  the  result  settle,  as  little  as 
possible,  in  favor  of  the  powers  of  the  Constitu- 
tion. The  slaveholding  interest,  always  in  favor 
of  State  sovereignty,  under  the  name  of  State 
rights,  gave  the  tone  to  the  government,  and 
usually  controlled  its  action.  Under  these  cir- 
cumstances, a  willing  ear  was  always  lent  to  any 
plans  for  limiting  or  curtailing  the  power  of  the 

1  The  people  had  been  informed  by  the  Convention,  in  their  Address 
to  Congress,  that  it  was  impracticable  to  secure  an  "  independent  sover- 
eignty to  each  [of  the  States] ,  and  yet  provide  for  the  safety  of  all ; " 
and  that  it  was  "  difficult  to  draw  with  precision  the  line  between  those 
rights  which  must  be  surrendered,  and  those  which  may  be  reserved." 
But  the  State  legislatures,  as  such,  had  not  been  asked  to  ratify  the  Con- 
stitution, and  had  not  done  it 


294  LEGISLATIVE  POWERS.  —  SPECIAL. 

general  government,  or  to  any  objections  or  ob- 
structions likely  to  prevent  or  embarrass  the 
development  or  aggrandizement  of  their  author- 
ity. It  was  an  up-hill  job  to  sustain  the  right 
of  the  nation  to  do  any  thing.  The  supporters 
of  the  government,  therefore,  in  all  such  con- 
tests, found  it  expedient  to  expose  as  little  front 
as  possible,  and  plant  their  engines  of  defence 
just  so  as  to  cover  the  point  of  immediate  at- 
tack. 

§  309.  The  first  statute  made  under  the  Con- 
stitution, respecting  certain  oaths,  was  defended 
solely  on  the  ground,  that  the  legislation  was 
necessary  for  executing  a  particular  provision  of 
the  Constitution,1  notwithstanding  the  legislative 
power  was  not  specially  invoked.  The  national 
Bank  was  sustained  mainly  on  the  narrow  ground 
of  the  fitness  and  convenience  of  its  agency  in 
collecting  and  disbursing  the  finances.  But  Mr. 
Lawrence,  of  New  York,  said,  in  debate,  in  the 
House  of  Representatives,  February,  1791,  "  The 
principles  of  the  government,  and  the  ends  of 
the  Constitution,  were  expressed  in  its  preamble : 
it  is  established  for  the  common  defence  and 
general  welfare.  The  body  of  that  instrument 
contained  provisions  the  best  adapted  to  the  in- 
tention of  those  principles,  and.  the  attainment 
of  those  ends.  To  these  ends,  principles,  and 
provisions,  Congress  was  to  have  a  constant  eye ; 
and  then,  by  the  sweeping  clause,  they  were 

1  Article  VI.,  section  3. 


LEGISLATIVE  POWERS.  —  SPECIAL.  295 

vested  with  the  powers  to  carry  the  ends  into 
execution." 

§  310.  In  the  debate  in  the  House  of  Repre- 
sentatives, on  the  3d  of  February,  1866,  on  the 
Freedman's  Bureau  Bill,  Mr.  Hubbard,  of  Con- 
necticut, said  "  There  was  authority  in  the  Con- 
stitution for  the  passage  of  this  Bill;  for  to 
Congress  was  given  power  to  pass  all  proper 
laws  to  carry  out  the  provisions  of  the  Constitu- 
tion, which  include  the  public  welfare."  But 
though  the  government  have  always  done,  and 
continue  to  do,  many  things  which  could  not  be 
justified  on  the  narrow  ground  of  any  special 
provision  among  the  duties  of  Congress,  this 
broad,  constitutional  platform  has  never  been 
boldly  assumed  and  consistently  maintained  by 
any  department  of  the  government,  on  any  sub- 
ject. There  probably  has  not  been  any  time 
when  it  could  have  been  done,  till  now.  The 
windy  warfare  of  posts  resulted  in  open  rebel- 
lion, and  that  has  resulted  in  the  plenary  estab- 
lishment of  the  national  supremacy;  and  the 
Constitution,  in  its  original  purity,  may  now  be 
safely  followed  and  successfully  defended.1 

§  311.  The  words  now  to  be  considered  are  a 
part  of  those  special  provisions  relating  to  the 
powers  of  Congress,  adapted  to  the  attainment 
of  the  avowed  objects  and  ends  of  the  Consti- 
tution. The  different  opinions  that  have  been 
advanced,  as  to  their  force  and  effect,  may  be 
classed  under  four  heads:  1st,  Whether  they 

1  See  motto  on  the  titlepage. 


296  LEGISLATIVE  POWERS.  — SPECIAL. 

really  mean  any  thing,  —  that  is,  whether  they 
confer  any  power  on  Congress,  for  any  purpose; 
2d,  Whether  they  confer  a  power  to  appropriate 
the  funds  arising  from  taxation  to  the  objects 
named;  3d,  Whether  they  are  used  only  as  a  qual- 
ification of  the  taxing  power  of  Congress,  limit- 
ing the  purposes  for  which  taxes  may  be  laid; 
4th,  Whether  they  specially  confer  on  Congress 
the  power  to  "  pay  the  debts,  and  provide  for  the 
common  defence  and  general  welfare." 

§  312.  On  the  first  head,  viz.,  whether  they 
confer  any  power  for  any  purpose,  Mr.  Madison, 
in  his  "  Report  of  the  Virginia  Resolutions," 
states  the  doctrine  thus:  w  Congress  is  author- 
ized to  provide  money  for  the  common  defence 
and  general  welfare.  .  .  .  Subjoined  to  this  au- 
thority is  an  enumeration  of  the  cases  to  which 
their  powers  shall  extend.  Money  cannot  be 
applied  to  the  general  welfare,  otherwise  than  by 
an"  application  of  it  to  some  particular  measure 
conducive  to  the  general  welfare.  Whenever, 
therefore,  money  has  been  raised  by  the  general 
authority,  and  is  to  be  applied  to  a  particular 
measure,  a  question  arises,  whether  that  particu- 
lar measure  be  within  the  enumerated  powers 
vested  in  Congress.  If  it  be,  the  money  re- 
quisite for  it  may  be  applied  to  it.  If  it  be  not, 
110  such  application  can  be  made."  The  same 
views  are  often  reiterated  in  his  veto  messages 
and  other  writings. 

§  313.  The  effect  of  them  is,  that  the  words 


LEGISLATIVE  POWERS.  —  SPECIAL.  297 

in  question,  "  to  pay  the  debts,  and  provide  for 
the  common  defence  and  general  welfare,"  have 
no  meaning  at  all.  They  give  Congress  no 
power  to  do  any  thing,  and  are  of  no  use,  and  of 
course  ought  not  to  be  in  the  Constitution.  The 
"  subjoined  .  .  .  enumeration  of  the  cases  to 
which  their  powers  shall  extend"  are  the  real 
and  only  "  specified  powers,"  —  the  actual  "  enu- 
merated powers  "  of  the  government,  for  which 
alone  money  can  be  raised  and  used,  —  notwith- 
standing all  that  he  and  others  have  said  about 
the  8th  section  being  such  an  enumeration. 
"Whenever  money  w  is  to  be  applied  to  a  particu- 
lar measure,  a  question  arises,"  not  whether  it 
be  w  to  pay  the  debts,  or  provide  for  the  common 
defence  or  general  welfare ; "  but  "  whether  the 
particular  measure  [for  either  of  the  cases]  be 
within  the  [8th  section?  !N~o;  but  whether  it 
be  within  the  ?  subjoined ']  enumerated  powers 
vested  in  Congress." 

§  314.  Let  the  principle  be  explained  and 
tested,  by  applying  it  to  practice.  Suppose  the 
w  particular  measure  "  to  be  a  bill  to  pay  $100,000 
to  the  captors  of  J.  D.  The  question  of  consti- 
tutionality is  raised,  as  usual,  on  all  bills.  The 
question  is  not,  whether  it  is  a  debt  which  the 
government  is  bound  to  pay;  but  whether  there 
is,  within  the  last  sixteen  items  of  the  8th  section, 
a  specific  authority  granted  to  Congress  to  pass 
this  "  particular  measure,"  paying  $100,000  for 
the  capture  of  J.  D.  Or  suppose  the  w  particu- 


298  LEGISLATIVE  POWERS.  —  SPECIAL. 

lar  measure  "  to  be  a  bill  for  sustaining  the  West- 
Point  Academy.  The  question  is  not,  whether 
it  is  properly  adapted  ^  to  provide  for  the  com- 
mon defence ; "  but  whether  there  is,  in  the  last 
sixteen  items  of  the  8th  section,  any  specific 
authority  granted  to  Congress  to  defray  the  ex- 
pense of  sending  J.  D.,  R.  E.  L., . J.  E.  J.,  and 
other  rebels,  to  school,  and  teaching  them  mathe- 
matics and  military  tactics.  Or,  again,  suppose 
the  "  particular  measure  "  to  be  the  relief  of  the 
French  refugees  from  the  St.  Domingo  massacre. 
The  question  is  not,  whether  it  would  redound  to 
the  credit  and  "  general  welfare  "  of  the  United 
States  to  feed  these  starving  Frenchmen  ;  but 
whether  there  is  any  specific  grant  of  power  to 
Congress  to  adopt  this  "  particular  measure," 
and  purchase  hog  and  hominy  to  give  away  to 
absconding  aliens. 

§  315.  To  the  same  purport,  Mr.  Monroe,  in 
his  veto  of  the  Cumberland  Road  Bill,  says,  "  If 
we  examine  the  specific  grants  of  power,  we  do 
not  find  it  among  them;  nor  is  it  incidental  to 
any  power  which  has  been  specifically  granted." 
In  his  exposition,  afterwards,  he  states  the  doc- 
trine thus :  "  The  national  government  .  .  .  has 
no  right  to  expend  money,  except  in  the  per- 
formance of  acts  authorized  by  the  other  specific 
grants,  according  to  a  strict  construction  of 
their  powers;  that  this  grant,  in  neither  of  its 
branches,  gives  to  Congress  discretionary  powers 
of  any  kind;  but  it  is  a  mere  instrument  in  its 


LEGISLATIVE  POWERS.  —  SPECIAL.  299 

hands,  to  carry  into  effect  the  powers  contained 
in  the  other  grants."  It  is  curious  to  observe  in 
all  this  how  studiously  —  I  had  almost  written 
insidiously  —  these  gentlemen  assume,  and  take 
it  for  granted,  in  a  solemn  argument  as  to  the 
extent  of  the  powers  of  a  great  national  govern- 
ment for  half  a  continent,  that  all  its  powers 
must  necessarily  be  specific  and  particular  or 
incidental;  that  is,  circumstantial,  less  than  par- 
ticular, more  minute. 

§  316.  Mr.  Madison  demands  an  authority  for 
the  "  particular  measure  "  in  question.  Mr.  Mon- 
roe cannot  find  the  "specific  grant  of  power." 
According  to  these  gentlemen,  the  specified  and 
enumerated  powers  are  but  the  eighteen  items 
of  the  8th  section;  and  they  here  throw  away  a 
part  of  these,  on  the  ground  that  they  are  gene- 
ral, and  not  particular  or  specific.  Mr.  Madison 
says  no  "particular  measure"  can  be  adopted 
under  the  authority  to  "  provide  for  the  common 
defence  and  general  welfare ; "  but  we  must  look 
to  the  "  subjoined  .  .  .  enumeration "  for  the 
power  to  pass  the  "particular  measure."  Mr. 
Monroe  says  this  grant  is  of  no  validity,  unless 
the  performance  of  the  particular  acts  in  ques- 
tion are  "  authorized  by  the  other  specific  grants." 
Here,  then,  the  narrow  ground  of  special,  par- 
ticular, and  enumerated  powers,  "  according  to  a 
strict  construction,"  is  rendered  still  narrower  by 
casting  away  a  part  of  the  specified  and  enumer- 
ated powers  themselves.  By  what  authority  is 


300  LEGISLATIVE  POWERS.  —  SPECIAL. 

this  done?  Have  not  the  people  of  the  United 
States  a  right  to  delegate  what  powers  they 
please,  general  or  special,  to  their  own  govern- 
ment? and  who  has  a  right  to  say  that  a  part  of 
them  mean  nothing? 

§  317.  In  the  first  sentence  of  the  Constitu- 
tion, the  people  say  they  organize  and  establish 
the  government  for  the  purpose, "  in  order,"  to  do 
certain  things.  This  is  general,  it  is  said,  and 
goes  for  nothing,  because  no  special  or  particular 
powers  are  given  to  any  body  in  particular  to 
carry  them  out.  Very  well,  say  the  people,  we 
will  have  proper  departments  and  officers  to  ad- 
minister the  government,  and  perform  its  duties. 
So,  in  the  next  sentence,  they  say,  "  All  legisla- 
tive powers  herein  granted  shall  be  vested  in  a 
Congress."  As  all  the  duties  of  the  government 
require  legislation,  the  assignment  of  legislative 
power  would  seem  to  provide  for  that  portion  of 
the  governmental  duties.  But  no,  say  the  objec- 
tors, this  confers  no  special  power  on  Congress. 
The  purposes  mentioned  in  the  first  sentence  are 
general,  and  thus  practically  void;  and  this,  so  far 
as  it  refers  back  to  that,  is  void  also:  and  Con- 
gress can  do  nothing  by  virttfe  of  either,  for 
want  of  a  special  and  particular  authority.  The 
clause  means  by  "  herein  granted  "  the  same  as 
if  it  had  been  "  hereinafter  granted ; "  there  being 
none  granted  before,  special  or  particular.  "Very 
well,  say  the  people  once  more,  we  will  try 
again.  We  will  this  time  say  nothing  about 


LEGISLATIVE  POWERS.  —  SPECIAL.  301 

the  general  purposes  and  duties  of  the  whole 
government,  and  nothing  about  that  portion  of 
them  which  requires  legislation;  but  we  will  go 
directly  to  Congress,  and  say  what  they  shall  do. 
"  Congress  shall  have  power "  to  do  as  follows, 
&c.  But,  says  Mr.  Madison,  this  is  of  no  use :  it 
is  only  a  general  authority,  and  authorizes  no 
"particular  measure."  And  Mr.  Monroe  says, 
"  if  we  examine  the  specific  grants  of  power,  we 
do  not  find  it  [this  particular  measure]  among 
them."  This  course  of  dealing  would  destroy 
any  Constitution  that  was  less  comprehensive 
than  all  the  statutes  that  might  be  called  for  to 
the  end  of  time. 

§  318.  "General"  and  "particular"  are  relative 
terms.  Every  power  is  general  in  respect  to 
every  particular  which  it  includes  and  author- 
izes; and  every  power  is  particular  in  respect  to 
the  purpose  which  it  is  intended  to  effect,  and 
for  which  it  is  authorized.  Union,  justice,  tran- 
quillity, defence,  and  liberty  are  particular  and 
specific  objects,  in  reference  to  the  "  general  wel- 
fare ; "  and  each  of  them  is  general  in  reference 
to  all  the  particular  acts  by  which  they  may 
respectively  be  promoted.  The  common  defence 
is  a  general  power  in  reference  to  the  army, 
navy,  militia,  and  every  thing  else  that  can  be 
made  conducive  to  it;  and  the  army,  navy,  and 
militia  powers  are,  in  turn,  themselves  general, 
in  reference  to  all  the  particulars  involved  in 
them.  The  commercial  power  is  special  and 


302  LEGISLATIVE  POWERS.  —  SPE€IAL. 

specific  in  relation  to  the  great  ulterior  pur- 
poses for  which  the  government  was  established; 
and  general  in  relation  to  bankruptcy,  currency, 
post-office,  &c.,  particularly  mentioned  in  the 
Constitution;  and  also  in  respect  to  ships  and 
waggons,  passengers  and  freight,  steamboats  and 
locomotives,  canals  and  railroads,  and  many  other 
things  not  named,  but  equally  involved,  in  it. 
The  Constitution  furnishes  no  apology  for  say- 
ing that  general  powers  authorize  no  "  particular 
measure ;  "  or  that  they  do  not  authorize  any  and 
every  measure  properly  conducive  to  their  ac- 
complishment, and  not  otherwise  prohibited.  On 
the  contrary  theory  of  construction,  what  be- 
comes of  the  power  of  taxation  itself?  This  is 
general,  and  almost  unlimited.  Is  it  therefore 
void,  because  it  is  not  afterwards  reiterated  in 
terms  more  specific,  precise,  and  particular  in  the 
subjoined  enumeration  of  the  cases  to  which  it 
shall  extend  ?  No  such  subjoined  enumeration 
exists  ;  and  if  the  power  "  to  pay  the  debts,  and 
provide  for  the  common  defence  and  general 
welfare,"  would  be  void  without  it,  the  whole 
power  of  taxation  is  necessarily  void  also;  and 
all  taxes  laid  by  the  general  government  for 
preserving  their  own  existence,  or  for  any  other 
special  purpose  whatever,  are  absolutely  uncon- 
stitutional, because  that  particular  measure  is 
not  enumerated.  There  is  no  end  to  the  absurdi- 
ties into  which  gentlemen  lead  themselves,  by 
their  attempts  to  prove  by  the  Constitution 


LEGISLATIVE  POWERS.  —  SPECIAL.  303 

that  we  have  no  government  for  the  United 
States. 

§  319.  Second,  The  second  head  of  inquiry  in 
regard  to  the  words  "  to  pay  the  debts,  and 
provide  for  the  common  defence  and  general 
welfare,"  is  whether  they  confer  a  power  to  ap- 
propriate the  funds  arising  from  taxation  to  the 
objects  named.  Mr.  Monroe  says,  in  his  exposi- 
tion above  cited,  "  On  further  reflection  and  ob- 
servation, my  mind  has  undergone  a  change ; " 
and  he  proceeds  to  develop  his  new  views  as 
follows :  "  The  grant  consists  of  a  twofold  power, 
the  first  to  raise,  and  the  second  to  appropriate, 
the  public  money ;  and  the  terms  used  in  both 
instances  are  general  and  unqualified.  .  .  .  The 
grant  to  raise  money  gives  a  power  over  every 
subject,  from  which  revenue  may  be  drawn.  .  .  . 
The  second  branch  of  this  power,  that  which 
authorizes  the  appropriation  of  the  money  thus 
raised,  is  not  less  general  and  unqualified  than 
the  power  to  raise  it.  More  comprehensive 
terms  than  ?  to  pay  the  debts,  and  provide  for 
the  common  defence  and  general  welfare,'  could 
not  have  been  used,"  —  "  comprising l  every 
object  and  act  within  the  purview  of  the  legis- 
lative trust." 

§  320.  This  would  seem  to  be  sufficiently  broad 
for  all  practical  purposes ;  but  it  is  rendered 
much  more  so  by  another  very  correct  principle, 
which  he  applies  to  the  subject  in  the  same  con- 

1  As  Mr.  Madison  also  says,  Veto,  March  3,  1817. 


304:  LEGISLATIVE  POWERS.  —  SPECIAL. 

nection.  He  says,  "  It  ought  particularly  to  be 
recollected,  that,  to  whatever  extent  any  specific 
power  may  be  carried,  the  right  of  jurisdiction 
goes  with  it,  pursuing  it  through  all  its  inci- 
dents. .  .  .  Each  of  the  other  grants  is  limited 
by  the  nature  of  the  grant  itself.  This,  by  the 
nature  of  the  government  only."  Congress, 
then,  may  appropriate  money  to  any  object 
within  the  range  of  legitimate  legislation,  and 
take  jurisdiction  of  the  subject-matter,  "  through 
all  its  incidents,"  so  as  to  make  it  effectual  for 
the  uses  intended,  and  regulate,  protect,  and 
perpetuate  it  therein.  They  may,  of  course, 
make  all  laws  necessary  and  proper  for  these 
purposes.  Mr.  Monroe  is  very  careful,  in  the 
same  connection,  to  repudiate  the  idea,  "  that  the 
words  ?  to  provide  for  the  common  defence  and 
general  welfare,'  .  .  .  form  an  original  grant, 
with  unlimited  power,  superseding  every  other 
'grant; "  which  it  is  presumed  nobody  ever  held, 
in  those  terms  or  in  any  other,  coming  nearer 
to  it  than  his  own  most  mature  "  reflection  and 
observation  "  have  led  him  to  adopt,  and  develop 
in  the  broad  and  comprehensive  language  above 
cited. 

§  321.  Third,  The  idea  under  the  third  head  is, 
that  the  words  in  question  are  used  in  the  Con- 
stitution by  way  of  qualification  of  the  taxing 
power,  limiting  it  to  the  three  purposes  thus  ex- 
pressed. Mr.  Jefferson  states  the  doctrine  thus : l 

1  Opinion  on  the  Bank,  February,  1791. 


LEGISLATIVE  POWERS.  —  SPECIAL.  305 

w  To  lay  taxes  to  provide  for  the  general  welfare 
of  the  United  States,  —  that  is  to  say,  '  to  lay 
taxes  for  the  purpose  of  providing  for  the  gene- 
ral welfare ; '  for  the  laying  of  taxes  is  the  power, 
and  the  general  welfare  the  purpose  for  which 
the  power  is  to  be  exercised.  Congress  are  not 
to  lay  taxes  ad  libitum,  for  any  purpose  they 
please;  but  only  to  pay  the  debts,  or  provide  for 
the  general  welfare,  of  the  Union.  In  like  man- 
ner, they  are  not  to  do  any  thing  they  please,  to 
provide  for  the  general  welfare,  but  only  to  lay 
taxes  for  that  purpose." 

§  322.  According  to  this  interpretation,  then, 
Congress  have  the  POWER  to  provide  for  the  gen- 
eral welfare,  in  this  one  way  at  least,  to  wit,  by 
laying  and  collecting  taxes  for  that  express  pur- 
pose. Then  it  is  a  " power"  vested  by  the  Consti- 
tution in  this  department  of  the  government.  If 
this  be  so,  then  Congress  have,  by  another  pro- 
vision of  the  same  section,  express  power  "to 
make  all  laws  .  .  .  necessary  and  proper  for  car- 
rying it  into  execution."  Whatever  Congress 
may  do  under  this  or  any  other  power,  they 
must  exercise  jurisdiction  over  ;  see  that  the 
money  devoted  to  it  is  properly  applied,  and 
made  effectual  for  the  purpose;  and  then  protect 
and  defend  it  in  its  future  administration.  What 
this  power  is,  Mr.  Jefferson  instructs  us,  in  an- 
other part  of  the  same  opinion.  He  says,  that, 
considered  as  a  w  distinct  and  independent " 
power,  it  would  be  a  "  power  to  do  whatever 

20 


306  LEGISLATIVE  POWERS.  — SPECIAL. 

would  be  for  the  good  of  the  United  States;  and 
as  they  [Congress]  would  be  the  sole  judges  of 
the  good  or  evil,  it  would  also  be  a  power  to  do 
whatever  evil  they  pleased."  How  the  power  is 
different  from  this,  if  considered  only  as  w  de- 
scribing the  purpose  "  or  object  of  taxation,  he 
does  not  explain. 

§  323.  He  supposes  the  words  in  question  are 
a  limitation  of  the  preceding  power  of  taxation. 
"  Congress,"  he  says, "  cannot  lay  taxes  ad  libitum, 
but  only  to  pay  debts,"  &c.  All  government  is 
a  trust,  and  can  be  rightfully  exercised  only  for 
the  purposes,  and  within  the  limits,  of  the  funda- 
mental law  for  the  public  good.  The  purposes 
and  objects  of  our  government  are  stated  in  the 
Constitution;  and  neither  the  public  funds  nor 
the  public  credit  can  be  legally  applied  to  any 
others.  These  limit  the  exercise  of  all  the 
powers  of  the  government,  and  this  among  the 
rest.  These  purposes  are  union,  justice,  tran- 
quillity, defence,  welfare,  and  liberty;  and  they 
are  all  included  m  the  "  common  defence  and 
general  welfare,"  or  rather  in  the  "  general  wel- 
fare "  alone.  Any  thing  in  the  nature  of  a  re- 
striction of  these  must  certainly  be  expressed  in 
other  and  narrower  terms.  But  the  terms  used 
in  the  8th  section  are,  "to  pay  the  debts,  and 
provide  for  the  common  defence  and  general 
welfare,  of  the  United  States ; "  and  are  as  broad 
as  the  purposes  of  the  Constitution  itself,  and 
co-extensive  with  them.  So  far  are  they  from 


LEGISLATIVE  POWERS.  — SPECIAL.  307 

forming  a  restriction  on  the  power  of  levying 
and  appropriating  the  public  money,  that  they 
actually  make  the  power,  by  express  grant,  co- 
extensive with  all  possible  purposes  of  the  gov- 
ernment, instead  of  compelling  them  to  rely  on 
the  implied  power,  which  alone  would  have  ex- 
isted without  them. 

§  324.  These  gentlemen  all  assume  that  the 
particular  or  special  grants  are  all  the  powers 
the  government  have,  and  thence  infer  that  the 
general  grants  are  void  or  unmeaning.  But  they 
forget  that  the  converse  of  the  proposition  is 
equally  true;  and  that,  if  others  choose  to  assume 
that  the  general  grants  are  valid,  then  it  will  fol- 
low that  the  special  ones  are  useless  and  void. 
So  the  argument  is  balanced,  and  good  for 
nothing  either  way.  Either  their  rule  is  false, 
or  their  application  of  it  is  erroneous.  If  the 
general  and  special  powers  of  the  Constitution 
are  not  incompatible,  then  their  rule  is  not  well 
applied.  The  foregoing  theories  are  all  effectu- 
ally answered  among  themselves.  Mr.  Jefferson 
and  Mr.  Monroe  both  agree  that  these  words 
mean  something,  and  that  Mr.  Madison's  theory 
to  the  contrary  is  untenable.  Mr.  Madison  and 
Mr.  Monroe  agree  that  Mr.  Jefferson's  is  so ; 
and  Mr.  Jefferson  and  Mr.  Madison  agree  that 
Mr.  Monroe's  is  also.  So  there  is  a  decided  ma- 
jority against  each;  and  the  majority  in  each 
case  is  undoubtedly  right. 

§  325.  Mr.  Madison,  in  his  report  above  cited, 


308  LEGISLATIVE  POWERS.  —  SPECIAL. 

gives  the  result  thus :  "  Kow  whether  the  phrases 
in  question  be  construed  to  authorize  every  mea- 
sure relating  to  the  common  defence  and  general 
welfare,  as  considered  by  some,  or  every  measure 
only  in  which  there  might  be  an  application  of 
money,  as  suggested  by  the  caution  of  others, 
the  effect  must  substantially  be  the  same,  in 
destroying  the  import  and  force  of  the  particular 
enumeration  of  powers  which  follows  these  gen- 
eral phrases  in  the  Constitution :  for  it  is  evident, 
that  there  is  not  a  single  power  whatever,  which 
may  not  have  some  reference  to  the  common 
defence  or  the  general  welfare;  nor  a  power  of 
any  magnitude,  which,  in  its  exercise,  does  not 
involve  or  admit  an  application  of  money.  The 
government,  therefore,  which  possesses  power  in 
either  one  or  other  of  these  extents,  is  a  govern- 
ment without  limitations,  formed  by  a  particular 
enumeration  of  powers;  and,  consequently,  the 
meaning  and  effect  of  this  particular  enumeration 
is  destroyed  by  the  exposition  given  to  these 
general  phrases." 

§  326.  In  regard  to  the  practice  of  the  gov- 
ernment, Judge  Story  very  justly  remarks,1  that 
w  appropriations  have  never  been  limited  by  Con- 
gress to  cases  falling  within  the  specific  powers 
enumerated  in  the  Constitution,  whether  those 
powers  be  construed  in  their  broad  or  their 
narrow  sense."  But  though  neither  of  the 
foregoing  theories  has  commanded  the  assent 

i  2  Com.,  457. 


LEGISLATIVE  POWERS. —SPECIAL.  309 

• 

of  all  who  wished  them  success,  nor  proved  suf- 
ficient to  limit  the  legislation  of  the  country 
within  the  narrow  bounds  they  would  indicate, 
yet  they  have  been  exceedingly  useful  to  the 
slaveholding  politicians,  as  a  convenient  make- 
weight, to  divide  their  opponents,  and  defeat 
measures  particularly  uncongenial  to  their  wishes, 
when  it  was  found  impossible  to  sustain  their 
position  on  the  merits  of  the  question. 


CHAPTEE    XXI. 

LEGISLATIVE   POWERS.  — SPECIAL. 
The  Financial  Powers. 

§  327.  Fourth,  THE  fourth  and  only  remaining 
head  of  inquiry  is,  whether  the  words,  "to  pay 
the  debts,  and  provide  for  the  common  defence 
and  general  welfare,  of  the  United  States," 
actually  confer  the  power  thereby  expressed,  ac- 
cording to  their  plain,  obvious,  and  legal  mean- 
ing. The  original  proposition  for  putting  these 
words  into  the  Constitution  was  made  by  Mr. 
Sherman,  of  Connecticut.1  He  thought  it  neces- 
sary to  connect  with  the  taxing  clause,  "  an  ex- 
press provision  for  the  object  of  the  old  debts," 
&c. ;  and  moved  to  add  to  it,  "  for  the  payment 
of  said  debts,  and  for  the  defraying  the  expenses 
that  shall  be  incurred  for  the  common  defence 
and  general  welfare."  This  was  plainly  an  au- 
thority to  pay  —  in  the  language  of  Mr.  Sher- 
man, "an  express  provision  for" — the  old  debts, 

1  Not,  however,  till  a  determination  had  been  manifested  in  the  Con- 
vention to  provide  in  some  form  for  the  actual  payment  of  the  Revolu- 
tionary debt. 
[310] 


LEGISLATIVE  POWERS.  —  SPECIAL.  311 

and  an  equally  express  provision  for  new  ones. 
No  man  had  then  doubted  that  Congress  could 
incur  debts  and  expenses,  as  the  old  government 
had  done,  for  the  public  good,  under  the  name 
of  the  w  common  defence  and  general  welfare." 
But,  says  Mr.  Madison,1  w  The  proposition,  as 
being  unnecessary,  was  disagreed  to." 

§  328.  Why  and  how  was  this  authority  un- 
necessary f  Not,  certainly,  because  the  object 
was  disapproved,  but  because  it  was  already  pro- 
vided for.  In  -regard  to  the  old  debts,  this  was 
done  by  the  sixth  Article,  which  had  just  been 
adopted,  recognizing  the  validity  of  those  debts. 
In  regard  to  new  debts,  this  wras  done  by  the  prin- 
ciple, that  whoever  may  lawfully  contract  a  debt 
is  legally  bound  to  pay  it.  Again,  it  was  done, 
in  regard  to  both,  by  the  principle,  that  the  debts 
were  against  the  United  States,  and  any  govern- 
ment of  the  United  States  would  be  bound  to 
pay  them.  It  did  not  authorize  the  contraction 
of  any  new  liabilities,  or  any  debts  or  expenses 
for  any  new  objects,  but  only  to  pay  "  expenses  " 
lawfully  incurred  under  other  existing  provi- 
sions. So  the  motion  failed  for  this  time;  but 
Mr.  Sherman  was  not  satisfied. 

§  329.  Three  days  afterwards,  he  obtained  the 
appointment  of  a  large  committee,  of  which  he 
was  a  member,  to  which  this  and  several  other 
subjects  were  committed.  That  committee  re- 
ported the  clause  in  the  shape  it  now  stands  in 

i  3  Madison  Papers,  1427. 


312  LEGISLATIVE  POWERS.  —  SPECIAL. 

\ 

V    ' 
the  Constitution,  without  the  last  line,  on  the  rule 

of  uniformity,  which  was  subsequently  added. 
This  report  was  now  adopted  unanimously, 
though  before  it  obtained  but  the  single  vote  of 
Mr.  Sherman's  own  State,  which  required  the  ac- 
quiescence of  only  a  single  man  besides  himself. 
Before,  it  was  rejected  because  it  was  unneces- 
sary. What  is  the  difference  in  the  two  forms? 
In  the  original  form,  it  simply  gave  authority  for 
paying  two  different  classes  of  debts,  the  old  and 
the  new.  It  was  an  authority  to  pay  and  dis- 
charge merely ;  to  perform  an  admitted  duty. 
This  was  unnecessary,  because  what  was  an  ad- 
mitted duty  was  to  be  performed  at  any  rate, 
and  no  new  provision  could  increase  the  authority 
or  the  obligation. 

§  330.  In  the  new  or  present  form,  it  is  not 
only  an  authority  to  pay  and  discharge  all  debts, 
old  or  new  indiscriminately,  but  an  additional 
authority,  not  to  pay,  but  to  "  provide  for  the 
common  defence  and  general  welfare."  In  this 
shape  it  passed  the  Convention  unanimously. 
"Why?  They  had  just  decided  that  a  special 
power  to  pay  debts  was  not  necessary.  They 
now  decide  that  a  power  "  to  pay  the  debts,  and 
provide  for  the  common  defence  and  general 
welfare,"  is  necessary.  The  difference  between 
the  two  propositions  has  been  pointed  out.  The 
difference  of  judgment  upon  them  must  be  in 
consequence  of  that  difference,  because  there  is 
no  other.  And  both  decisions  were  right,  —  the 


LEGISLATIVE  POWERS.  —  SPECIAL.  313 

first  for  the  reasons  above  given ;  and  the  second, 
because  the  great  purposes  and  objects  of  the 
government,  disclosed  by  tkose  words,  had  not 
till  then  found  a  place  in  the  Constitution. 

§  331.  It  is  to  be  recollected,  that  the  intro- 
ductory sentence,  the  enacting  clause,  had  not 
then  been  formed.  The  only  preface  it  then  had 
was  no  part  of  the  instrument,  but  a  simple  an- 
nunciation from  without  of  "  the  following  Con- 
stitution," but  disclosing  none  of  its  purposes 
or  objects.  The  other  parts  of  the  Constitution 
then  were,  and  still  are,  equally  reticent  in  this 
respect.  The  ultimate  and  final  objects  of  this 
government,  and  of  all  government,  with  the 
power  or  means  of  obtaining  them,  first  find  their 
place  in  the  Constitution  here,  and  are  afterwards 
copied,  with  explanatory  enlargement,  into  the 
enacting  clause.  Their  great  importance  ren- 
dered their  insertion  necessary,  and  this  neces- 
sity commanded  the  unanimous  assent  of  the 
Convention;  and  they  were  afterwards  inserted 
in  the  first  sentence,  for  the  same  reason,  and 
with  the  same  unanimous  consent.  As  this  rea- 
son is  ample  and  sufficient,  and  no  better  one  is 
wanted,  it  may  well  be  presumed  that  this  was 
the  true  reason  for  which  the  people  also  ratified 
and  adopted  it. 

§  332.  This  committee  of  Mr.  Sherman's  was 
a  sort  of  omnibus  committee,  and  what  was 
called  a  grand  committee,  of  one  from  each 
State,  appointed  on  the  last  day  of  August.  It 


314          LEGISLATIVE  POWERS.  — SPECIAL. 

was  a  large  and  able  committee,  of  which  him- 
self, Mr.  King,  Mr.  G.  Morris,  Mr.  Madison,  &c., 
were  members,  and  Mr.  Brearley  was  chair- 
man. Their  duty  was  to  report  upon  "  such  parts 
of  the  Constitution  as  have  been  postponed,  and 
such  parts  of  reports  as  have  not  been  acted  on." 
On  the  23d,  the  first  clause  of  section  8  had  been 
left  in  this  form:  "  The  legislature  shall  fulfil 
the  engagements  and  discharge  the  debts  of  the 
United  States,  and  shall  have  the  power  to  lay 
and  collect  taxes,  duties,  imposts,  and  excises;" 
and,  on  the  25th,  his  addition  "  for  the  payment 
of  said  debts,  and  for  the  defraying  the  expenses 
that  shall  be  incurred  for  the  common  defence 
and  general  welfare,"  had  been  negatived ;  which, 
in  his  view,  left  the  clause  unfinished.  Besides, 
on  the  22d,  the  Committee  of  Detail  had  made 
an  additional  report,  a  part  of  which  was  in  these 
words,  and  had  "  not  been  acted  on,"  viz.,  w  And 
to  provide,  as  may  become  necessary,  from  time 
to  time,  for  the  well-managing  and  securing  the 
common  property  and  general  interests  and  wel- 
fare of  the  United  States,  in  such  manner  as 
shall  not  interfere  with  the  government  of  indi- 
vidual States  in  matters  which  respect  only  their 
internal  policy,  and  for  which  their  individual 
.authority  may  be  competent."  This  was  to  be 
added  to  one  of  the  last  clauses,  of  section  8 ; 
and,  Judge  Story  says,1  if  it  had  been  adopted, 
"would  have  created  a  general  power  to  this 

i  2  Com.,  394. 


LEGISLATIVE  POWERS.  —  SPECIAL.  315 

effect."  Because  it  had  not  been  acted  on,  and 
the  first  clause  was  considered  unfinished,  this 
committee  were  authorized  to  report,  and  did 
report,  a  new  draft,  which  was  adopted  unani- 
mously, as  follows :  "  To  lay  and  collect  taxes, 
duties,  imposts,  and  excises;  to  pay  the  debts, 
and  provide  for  the  common  defence  and  general 
welfare,  of  the  United  States." 

§  333.  To  pay  debts,  and  provide  for  the  com- 
mon defence  and  general  welfare,  may  be  called 
independent,  or  auxiliary,  or  ancillary  powers; 
but  they  are  certainly  powers,  and  powers  to  be 
exercised.  Debts  must  be  paid,  and  defence  and 
welfare  provided  for,  whether  taxes  are  laid 
and  collected  or  not.  Else  what  is  the  use  of 
borrowed  money,  or  the  proceeds  of  public  lands, 
or  any  other  sources  of  revenue?  So  the  laws 
must  be  executed,  rebellions  suppressed,  and  in- 
vasions repelled.  These  things  may  be  done  by 
calling  out  the  militia;  and  they  may  be  done 
by  any  other  constitutional  means  as  well,  and 
perhaps  better.  *  The  truth  is  ...  it  was 
deemed  best  to  append  the  power  to  pay  the 
public  debts  to  the  power  to  lay  taxes;  and  then 
to  add  other  terms,  broad  enough  to  embrace  all 
the  other  purposes  contemplated  by  the  Consti- 
tution. Among  these,  none  were  more  appro- 
priate than  the  words  *  common  defence  and 
general  welfare,'  found  in  the  Articles  of  Con- 
federation, and  subsequently,  with  marked  em- 
phasis, introduced  into  the  introductory  clause 


316  LEGISLATIVE  POWERS.  —  SPECIAL. 


\ 


v 

of  the  Constitution.  To  this  course  no  opposi- 
tion was  made,  because  it  satisfied  those  who 
wished  to  provide  positively  for  the  public  debts, 
and  those  who  wished  to  have  the,  power  of 
taxation  co-extensive  with  all  constitutional  ob- 
jects and  powers.  In  other  words,  it  conformed 
to  the  spirit  of  that  resolution  of  the  Convention 
which  authorized  Congress  to  'legislate,  in  all 
cases,  for  the  general  interests  of  the  Union.' "  * 
§  334.  Another  historical  circumstance,  of 
some  importance  in  this  connection,  is  mentioned 
by  Judge  Story : 2  ??  The  fact  that,  in  the  revised 
draft  of  the  Constitution  in  the  Convention, 
the  clause  [to  pay  the  debts,  and  provide  for  the 
common  defence  and  general  welfare,  of  the 
United  States]  was  separated  from  the  preced- 
ing [to  lay  taxes,  duties,  imposts,  and  excises], 
exactly  in  the  same  manner  as  every  succeeding 
clause  was,  viz.,  by  a  semicolon 3  and  a  break  in 
the  paragraph;"  constituting  them  distinct  and 
separate  provisions,  as  completely  as  the  two 
next,  "  to  borrow  money  "  and  "  to  regulate  com- 
merce," were  by  the  same  means.  In  this  form 
it  was  finally  adopted  by  the  Convention,  and 
not  afterwards  altered  otherwise  than  by  the 
addition  of  the  uniformity  clause.  This  addition 
was  made  in  the  Convention,  unanimously  and 
without  debate;  from  which  we  may  safely  infer 

i  2  Story's  Com.,  395.  2  2  Com.  371. 

3  This  punctuation  has  since  been  altered,  by  substituting  the  colon  for 
the  semicolon,  —  probably  by  the  same  authority  that  added  the  numerals 
to  the  different  paragraphs. 


LEGISLATIVE  POWERS.  — SPECIAL.  317 

that  no  alteration  in  the  construction  or  effect 
of  the  preceding  clauses  was  intended  or  sus- 
pected. 

§  335.  From  this  historical  resume  of  the  sub- 
ject, it  is  manifest,  that,  so  far  as  the  Convention 
is  concerned,  the  words  "  to  pay  the  debts "  were 
introduced  for  the  precise  and  sole  purpose  of 
adding  a  distinct  and  independent  power  to  pay 
the  old  Revolutionary  debts.  "  Defence  "  and 
"  welfare  "  being  introduced  in  the  same  manner, 
and  following  in  the  same  category,  must  be 
understood  as  adding  other  distinct  and  inde- 
pendent powers,  as  they  could  not,  in  that 
connection,  answer  any  other  purpose.  This 
conclusion  is  further  rendered  certain  by  the 
fact  that  these  words,  as  the  Convention  adopted 
them,  on  the  report  of  the  Committee  of  Re- 
vision, constituted  a  separate  and  distinct  clause 
by  itself,  —  as  much  so  as  the  power  w  to  borrow 
money,"  or  any  other  separate  and  distinct  clause 
in  the  section. 

§  336.  What  "the  people  of  the  United  States" 
meant  by  it,  is,  however,  the  only  question;  and 
this  must  be  ascertained  exclusively  from  the 
words  they  have  used,  for  they  have  given  us  no 
other  means.  The  words  are  there,  and  are  in- 
telligible and  purtenant,  and  must  be  understood 
to  mean  something.  We  are  not  at  liberty  to 
assume,  or  even  to  argue,  that  they  can  have 
been  put  there  for  no  purpose.  This  would 
contravene  all  known  rules  of  legal  interpret^- 


•-»  V  ••-•-  ; 

318  LEGISLATIVE  POWERS.  — SPECIAL. 


tion.1  That  idea  must  therefore  be  dismissed. 
The  only  remaining  ones  are,  —  that  "  to  pay  the 
debts,  and  provide  for  the  common  defence  and 
general  welfare,"  constitute  distinct  and  indepen- 
dent powers  of  Congress ;  or  that  they  appertain 
to,  and  qualify  the  preceding  power  of,  taxation. 
On  these  two  theories,  the  following  suggestions 
are  made. 

§  337.  The  words  are  appropriate,  important, 
and  national  in  their  character;  and  indicate 
such  powers  as  belong  to  every  independent 
government  on  earth.  There  is  therefore  no 
reason,  in  the  nature  of  the  powers,  why  they 
should  not  be  conferred,  and  the  words  are  apt 
and  appropriate  for  conferring  them ;  particularly 
when  considered  in  connection  with  the  same 
words  repeated  in  the  enacting  clause,  to  an- 
nounce the  fundamental  purposes  for  which  the 
government  was  established. 

§  338.  The  same  words  used  to  express  the 
avowed  purposes  for  which  the  government  was 
instituted,  necessarily  devolve  these  duties  upon 
their  legislative  capacity,  wherever  that  is  de- 
posited. All  the  legislative  power  granted  to 
the  government  is  vested  in  Congress.  So  that 
Congress  must  necessarily  have  this  power,  in- 
dependent of  this  special  grant;  which  is  only 
another  example  of  the  pleonasms  and  repeti- 

1  "  It  is  a  most  unjustifiable  latitude  of  interpretation  to  deny  effect  to 
any  clause,  if  it  is  sensible  in  the  language  in  which  it  is  expressed,  and 
in  the  place  in  which  it  stands."  —  2  Story's  Com.,  380. 


LEGISLATIVE  POWERS.  — SPECIAL.  319 

tions  which  so  much  abound  in  our  Constitu- 
tion. 

§  339.  The  power  of  the  "  common  defence  " 
is  once  more  devolved  upon  Congress  by  Article 
IY.,  section  4.  "The  United  States  .  .  .  shall 
protect  each  of  them  [the  States]  against  inva- 
sion." The  United  States  is  the  government. 
The  government,  as  far  as  respects  legislation,  is 
Congress.  "  Each  of  the  States,"  in  conjunction, 
make  all  the  States.  So  Congress  must  provide 
for  the  common  defence,  independent  both  of  the 
introductory  clause  and  of  the  8th  section. 

§  340.  It  is  certain,  universally  admitted,  and 
never  has  been  doubted  by  anybody,  that  Con- 
gress has  in  fact,  and  has  always  had,  by  means 
of  a  constitutional  grant,  a  power  "  to  pay  the 
debts,  and  provide  for  the  common  defence  .  .  . 
of  the  United  States,"  and  has  always  exercised 
it,  without  any  reference  whatever  to  the  taxing 
power,  directly  or  indirectly;  and  the  power  to 
provide  for  the  "  general  welfare  "  is  conferred 
at  the  same  time,  in  the  same  connection,  and  in 
the  same  words,  which  must  there  mean  the 
same  thing,  according  to  a  well-known  principle 
of  law.  If  Congress  may  w  provide  for  the  com- 
mon defence,"  they  may  also  provide  for  the 
"  general  welfare ; "  for  they  are  united  by  the 
copulative  conjunction,  and  the  same  verb,  "  pro- 
vide," applies  to  both. 

§  341.  The  payment  of  the  public  debt  has 
never  been  considered  as  limited  to  the  revenue 


320  LEGISLATIVE  POWERS.  — SPECIAL. 

arising  from  taxation  in  any  form,  or  so  restricted 
in  practice.  The  old  Revolutionary  debt  was 
expressly  provided  for  from  several  other  re- 
sources; and  all  other  debts  are  constantly  paid, 
not  only  without  reference  to  that  revenue,  but 
even  when  that  resource  is,  as  it  has  sometimes 
been,  temporarily  cut  off. 

§  342.  The  common  defence  has  never  been 
provided  for,  solely,  by  the  payment  of  money, 
and  never  can  be;  but  when  money  has  been 
applied  to  it,  the  appropriation  never  had  refer- 
ence to  the  revenue  from  taxation.  In  time  of 
war,  such  a  restriction  would  be  ruinous.  At  the 
commencement  of  the  late  rebellion,  the  Treasury 
was  empty;  and  a  restriction  of  the  means  of 
defence  to  the  acquisitions  from  taxation  would 
have  destroyed  the  country. 

§  343.  The  same  is  true  in  regard  to  the  gen- 
eral welfare,  so  far  as  it  has  been  practised  upon 
at  all,  —  in  appropriations  for  the  improvement 
of  roads,  rivers,  and  internal  navigation  gene- 
rally. Even  in  the  famous  Bonus  Bill,  for  cre- 
ating a  fund  for  internal  improvement,  which 
passed  both  Houses  of  Congress,  no  proceeds 
of  taxation  were  proposed  to  be  used.  So 
that,  practically,  neither  of  these  powers  have 
ever  been  held  to  be  at  all  appurtenant  to,  or 
dependent  upon,  the  preceding  power  of  taxa- 
tion. 

§  344.  But,  lastly,  it  is  of  no  consequence,  and 
really  makes  no  difference,  as  to  the  magnitude 


LEGISLATIVE  POWERS.  —  SPECIAL.  321 

or  extent  of  either  of  these  powers,  whether 
they  are  considered  as  direct,  substantive  powers, 
or  only  as  incidental  and  appurtenant  to  the  tax- 
ing power.  For  if  Congress  may  appropriate 
the  public  money  of  any  sort,  in  either  way,  to 
these  purposes,  they  must  use  the  power  so  as 
to  make  it  effectual  for  the  purpose  in  view ;  and 
of  course  they  may  bring  to  their  aid  any  other 
means  within  the  range  of  legitimate  legislation.1 
For,  if  the  power  exists  in  any  form,  it  is  a 
"power  vested  by  the  Constitution,"  and  Con- 
gress have  an  express  authority  "  to  make  all 
laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution"  all  such  powers. 

§  345.  Mr.  Madison  takes  substantially  the 
same  view  in  a  passage  already  cited;2  and  Mr. 
Justice  Story  says,3 "  The  controversy  is  virtually 
at  an  end,  if  it  is  once  admitted  that  the  words, 
'  to  provide  for  the  common  defence  and  general 
welfare,'  are  a  part  and  qualification  of  the  power 
to  lay  taxes ;  for  then  Congress  has  certainly  a 
right  to  appropriate  money  to  any  purposes,  or 
in  any  manner,  conducive  to  those  ends."  The 
whole  stress  of  the  argument  is,  therefore,  to 
establish,  that  the  words,  "  to  provide  for  the 
common  defence  and  general  welfare,"  do  not 

1  "  The  American  people  thought  it  a  necessary  power,  and  they  con- 
ferred it  for  their  own  benefit.    Being  so  conferred,  it  carries  with  it  all 
those  incidental  powers  which  are  necessary  to  its  complete  and  effectual 
exercise."  —  Mr.  Chief  Justice  Marshall,  in  speaking  for  the  whole  Court, 
in  Cohens  v.  Virginia,  6  Wheat.  R.,  428. 

2  Ante,  p.  308.  s  2  Com.,  441. 

21 


V 
322  LEGISLATIVE  POWERS.  —  SPECIAL. 

form  an  independent  power,  nor  any  qualification 
of  the  power  to  lay  taxes.  And  the  argument 
is,  that  they  are  "  mere  general  terms,  explained 
and  limited  by  the  subjoined  specifications." 

§  346.  All  the  powers  granted  directly  to  Con- 
gress by  name,  in  distinction  from  those  which 
necessarily  devolve  upon  them  as  the  depository 
of  "  all  the  legislative  powers  "  required  for  the 
performance  of  the  great  purposes  and  duties 
for  which  the  government  was  ordained,  have 
been  called  " special  powers"  sometimes  " enu- 
merated powers"  though  they  are  not  enumerated 
in  the  Constitution;  because  they  are  direct  and 
express  grants  to  Congress,  without  reference  to 
their  particular  character,  whether  strictly  legis- 
lative or  otherwise.  The  power  to  borrow 
money,  to  call  forth  the  militia,  to  admit  new 
States,  to  govern  the  territories,  &c.,  are  not 
exclusively  legislative  in  their  nature,  and  might 
have  been  otherwise  provided  for.  But  they 
are  all  particular  and  specific  powers  of  Con- 
gress, because  they  are  specially  and  expressly 
granted  to  them,  and  do  not  depend  upon  any 
definition  of  the  legislative  power.  Some  of 
them  are  general,  or  in  "  general  terms ; "  others 
more  particular;  and  a  few  minute,  as  the  power 
to  alter  the  time  of  their  own  meeting.  But 
none  are  so  general  as  to  be  universal,  and  none 
so  particular  as  to  be  indivisible.  The  most 
minute  is  general  in  respect  to  all  the  particular 
acts  that  might  be  done  under  it;  and  the  most 


LEGISLATIVE  POWERS.  — SPECIAL.  323 

general  is  particular,  in  respect  to  any  thing 
more  general  that  would  include  it  with  others. 

§  347.  But  the  argument  is  predicated  on  the 
idea,  that  general  and  special  powers  are  ab- 
solutely incompatible.  If  general  powers  are 
granted,  including  and  absorbing  any  of  the 
special  powers,  then  the  special  powers  are  nug- 
atory and  void.  If  the  special  powers  are  valid, 
they  must  be  all  the  powers,  though  the  Consti- 
tution does  not  say  so ;  and  the  general  terms  are 
void,  and  mean  nothing.  In  the  case  of  our  own 
Constitution,  and  every  other  written  one  that 
ever  was  made,  the  people  have  attempted  to 
grant  both;  and  as  one  or  the  other,  according 
to  the  argument,  must  be  void,  every  man  may 
take  his  choice.  If  he  prefers  an  efficient 
national  government,  the  general  powers  are 
adequate  and  sufficient.  If  he  prefers  local 
governments,  or  none  at  all,  then  he  will,  with 
Mr.  Jefferson,  "lace  them  [the  national  govern- 
ment] up  strictly  within  the  enumerated  powers," 
always  rejecting  from  the  list  those  "general 
terms  "  which  confer  more  than  he  wants ;  and 
then,  whatever  justice,  tranquillity,  safety,  wel- 
fare, or  liberty  the  State  governments  are  able 
and  willing  to  dispense,  may  be  sought  there,  or 
obtained  nowhere. 

§  348.  So  far  as  this  controversy  divides  the 
opinion  of  honest  and  patriotic  legislators,  it 
tends  to  throw  the  practical  power  of  deciding 
measures  into  the  hands  of  unprincipled  and 


324  LEGISLATIVE  POWERS.  —  SPECIAL. 

selfish  politicians.  If  money  is  wanted  to  pur- 
chase new  States,  in  order  to  change  the  balance 
of  power,  then  with  such  politicians  the  general 
powers  are  valid  and  sufficient.  If  money  is 
wanted  by  others  for  the  internal  improvement 
of  the  States  we  have,  then  with  such  politicians 
"  general  terms  "  are  good  for  nothing,  and  the 
special  power  cannot  be  found.  Such  a  govern- 
ment would  be  inefficient  for  all  good  purposes, 
and  energetic  only  when  in  bad  hands,  to  which 
it  would  constantly  tend.  It  requires  some  phi- 
losophy, and  more  charity,  to  believe  that  the 
theory  in  question  was  not  invented  for  this  par- 
ticular reason;  and  that  it  is  not  still  pertina- 
ciously defended  out  of  respect  to  this  particular 
end.  All  governmental  power,  not  exercised 
under  the  supervision  and  responsibility  of  the 
national  authority,  will  be  very  likely  either  not 
to  be  exercised  at  all,  or  to  be  so  for  partial  and 
local  purposes,  inconsistent  with  general  justice, 
and  universal  liberty  and  right. 

§  349.  The  power  of  Congress  "to  borrow 
money  on  the  credit  of  the  United  States,"  is 
even  more  unlimited  than  the  power  of  taxation. 
The  amount,  the  terms,  and  the  use,  are  all  left 
to  their  discretion;  and  by  the  next  section,  9th, 
the  money  may  be  appropriated,  by  law,  to  the 
promotion  of  any  object  calculated  to  effect 
either  of  the  great  purposes  for  which  the  Con- 
stitution and  government  were  ordained  and 
established  by  the  people  of  the  United  States. 


LEGISLATIVE  POWERS. —  SPECIAL.  325 

The  remainder  of  the  8th  section  will  be  con- 
sidered under  the  heads  of  the  commercial  power, 
the  war  power,  and  a  few  miscellaneous  provi- 
sions. 


CHAPTER    XXII. 

LEGISLATIVE  PO WEKS.  —  SPECIAL. 
The  Commercial  Powers. 

§  350.  THE  power  "  to  regulate  commerce  with 
foreign  nations,  and  among  the  several  States, 
and  with  the  Indian  tribes,"  is  very  comprehen- 
sive. The  words  being  general,  the  sense  must 
be  general  also;  and,  like  the  preceding  words, 
"  common  defence  and  general  welfare,"  in  the 
same  section,  embrace  all  subjects  comprehended 
under  them.  Taken  in  connection  with  the  par- 
ticulars immediately  following  under  the  same 
head,  —  viz.,  naturalization,  bankruptcy,  money, 
weights  and  measures,  and  post-offices  and  post- 
roads, — it  is  difficult  to  conceive  of  any  thing,  in 
the  line  of  mutual  rights  and  duties,  arising  out 
of  the  peaceable  intercourse  of  mankind,  in  the 
ordinary  relations  of  civil  life,  internal  or  ex- 
ternal, which  may  not  be  provided  for  under  it. 
The  word  commerce  includes  not  only  trade  and 
traffic,  but  every  species  of  intercourse,  personal 
or  political,  in  all  its  branches,  between  nations 
and  individuals,  or  parts  of  nations;  with  the 

[326] 


LEGISLATIVE  POWERS.  —  SPECIAL.  327 

means  of  carrying  on  and  sustaining  such  inter- 
course, whether  financially,  through  the  influence 
of  currency  and  credit ;  or  physically,  by  locomo- 
tive or  transportation  agencies;  for  persons  or 
property,  in  vehicles  or  vessels,  land-borne  or 
water-borne,  moved  by  cattle,  wind,  or  steam, 
over  earth  or  sea,  by  river,  lake,  canal,  railroad, 
or  highway. 

§  351.  "  To  regulate  "  is  to  give  the  law,  or 
prescribe  the  rule,  by  which  all  this  intercourse 
is  to  be  governed.  Navigation  is  directly  alluded 
to  in  the  9th  section  as  a  part  of  commerce,  as 
it  undoubtedly  is ;  though  it  is  so  only  as  one  of 
the  means  by  which  it  is  carried  on,  and  is  no 
more  certainly  so  than  any  other  mode  of  trans- 
portation or  locomotion,  applicable  to  the  same 
purpose.  "  ]STo  sort  of  trade  or  intercourse  can 
be  carried  on  between  this  country  and  another, 
to  which  the  word  does  not  extend.  Commerce 
is  a  unit,  every  part  of  which  is  indicated  by  the 
term,  and  must  carry  the  same  meaning  through 
the  sentence,"  as  well  to  the  domestic  as  to  the 
foreign.1 

§  352.  "  With  foreign  nations  "  does  not  mean 
between  them  and  the  United  States,  as  commu- 
nities merely,  but  by  all  or  any  of  the  people  of 
either  with  those  of  the  other.  So  "  among  the 
several  States  "  does  not  mean  by  one  State  with 
another  in  their  corporate  capacities  (for  this  is 
expressly  restricted  by  the  10th  section),  or  by 

-      19  Wheat.  R. ;  1  Gibbons  v.  Ogden ;  2  Story's  Com.,  504. 


328  LEGISLATIVE  POWERS.  —  SPECIAL. 

the  United  States  with  any  of  them  merely;  but 
by  all  the  people  of  the  United  States  with  all 
the  people  of  any  of  the  States,  —  which  is  by 
all  the  people  of  the  United  States  with  each 
other.  f  "With  the  Indian  tribes  "  means  with 
all  Indian  tribes,  whether  within  or  without  the 
boundaries  of  the  United  States,  or  any  of  them, 
both  as  communities  and  individuals.  Trade  and 
intercourse  with  them,  in  all  its  forms,  is  subject 
to  the  exclusive  regulation  of  Congress. 

§  353.  In  the  practice  of  the  government,  the 
commercial  power  has  been  applied  to  embar- 
goes, non-intercourse,  non-importation,  coasting- 
trade,  fisheries,  navigation,  seamen,  privileges  of 
American  and  foreign  ships,  quarantine,  pilotage, 
wrecks,  lighthouses,  buoys,  beacons;  obstruc- 
tions in  bays,  sounds,  rivers,  and  creeks;  inroads 
of  the  ocean,  and  many  other  kindred  subjects; 
and,  doubtless,  includes  salvage,  policies  of  in- 
surance, bills  of  exchange,  and  all  maritime  con- 
tracts, and  the  designation  of  ports  of  entry  and 
delivery. 

§  354.  Wherever  the  power  of  Congress  ex- 
tends, they  are  the  exclusive  judges  of  the 
proper  reasons  and  motives  for  exercising  it, 
and  are  not  to  be  controlled  by  any  allegation 
that  it  was  done  for  a  purpose  not  contemplated 
in  the  original  grant.  This  commercial  power 
has  been  employed  for  the  purposes  of  prohibi- 
tion, reciprocity,  retaliation,  and  revenue, — some- 
times, also,  to  encourage  domestic  navigation 


LEGISLATIVE  POWERS.  —  SPECIAL.  329 

and  manufactures,  by  bounties,  discriminating 
duties,  and  special  privileges  and  preferences, 
and  to  regulate  intercourse,  with  a  view  to  mere 
political  objects;  and  the  right  to  do  so  has  been 
sustained  by  the  unequivocal  voice  of  the  na- 
tion.1 

§  355.  Attempts  have  been  made  to  .exclude 
from  the  commercial  power  of  Congress  what  has 
been  called  the  strictly  internal  traffic  of  the 
inhabitants  of  a  State  among  themselves.  "  But 
what  regulation  of  commerce  does  not  extend  to 
the  internal  commerce  of  every  State  ?  What  are 
all  the  duties  upon  imported  articles,  amount- 
ing in  some  cases  to  prohibitions,  but  so  many 
bounties  upon  domestic  manufactures,  affecting 
the  interest  of  different  classes  of  citizens  in  dif- 
ferent ways?  What  are  all  the  provisions  of 
the  coasting  Act,  which  relate  to  the  trade  be- 
tween district  and  district  of  the  same  State  ? 
In  short,  what  regulation  of  trade  between  the 
States,  but  must  affect  the  internal  trade  of  each 
State?  What  can  operate  upon  the  whole,  but 
must  extend  to  every  part?"2  If,  in  the  opinion 
of  Congress,  the  common  defence,  or  general 
welfare,  or  the  security  of  liberty,  should  be 
found  to  require  their  interference,  in  regard 
to  any  traffic  or  other  intercourse  among  the 
inhabitants  of  any  of  the  States  with  each  other, 
or  anybody  else,  it  would  be  exceedingly  diffi- 
cult to  exclude  the  jurisdiction  of  the  United 

1  Ibid.,  519.  2  Hamilton's  Opinion  on  the  Bank. 


330  LEGISLATIVE  POWERS.  —  SPECIAL. 

States,  or  to  establish  any  exclusive  right  thereto, 
in  any  particular  State. 

§  356.  This  power  has  been  decided  to  be 
exclusive  in  Congress.  The  reasoning  by  which 
this  decision  is  supported  in  the  case  last  cited, 
is  summarily  stated  by  Judge  Story  thus :  "  The 
full  power  to  regulate  a  particular  subject  im- 
plies the  whole  power,  and  leaves  no  residuum, 
.  .  .  and  necessarily  excludes  the  action  of  all 
others  who  would  perform  the  same  operation 
on  the  same  thing.  Regulation  is  designed  to 
indicate  the  entire  result,  applying  to  those  parts 
which  remain  as  they  were,  as  well  as  to  those 
which  are  altered."  If  it  be  admitted  that  this 
course  of  reasoning  is  sound  and  conclusive, 
it  must  also  be  admitted,  that  it  is  difficult  to 
see  wherein  it  is  less  applicable  to  any  other 
subject  over  which  the  jurisdiction  of  Congress 
extends. 

§  357.  Their  authority  in  all  is  supreme,  and 
paramount  to  all  other.  Nevertheless,  it  has  been 
decided  by  the  same  court,  that,  in  the  case  of 
bankruptcy,  which  is  placed  undoubtedly  within 
the  exclusive,  jurisdiction  of  Congress,  if  they 
do  not  act,  the  State  laws  are  valid.  And,  in  re- 
gard to  this  very  commercial  power,  Judge  Story 
says,  in  the  same  chapter,  discussing  the  right 
of  a  State  to  authorize  an  obstruction  to  its 
navigable  rivers  and  creeks,  that,  "  if  Congress 
has  passed  no  general  or  special  Act  on  the 
subject,  the  invalidity  of  such  a  State  Act 


LEGISLATIVE  POWERS.  —  SPECIAL.  331 

must  be  placed  entirely  upon  its  repugnancy  to 
the  power  to  regulate  commerce  in  its  dormant 
state ; "  the  adequacy  of  which  he  hesitates  to 
affirm. 

§  358.  So  that  in  this  case,  as  in  others,  the 
exclusive  power  of  Congress  over  the  subject 
would  seem  to  amount  to  little  more  than  the 
right  to  make  their  power  exclusive,  if  they 
please;  though  it  is  said  their  will  on  the  whole 
subject  is  manifested  as  well  by  what  they  leave 
unaltered,  as  by  what  they  alter.  By  neglecting 
to  act  on  any  branch  of  the  subject,  they  seem 
simply  to  authorize  their  subjects,  personal  and 
political,  to  be  a  law  to  themselves.  Individuals 
would  so  understand  it,  in  relation  to  matters 
coming  within  their  exclusive  cognizance;  and 
State  legislatures,  or  other  political  bodies,  would 
be  likely  so  to  understand  it,  in  relation  to  such 
things  as  they  claimed  a  right  to  control.  There 
being  no  constitutional  prohibition,  and  no  para- 
mount law  contravening  their  action,  the  au- 
thority of  their  own  State  constitutions  would 
be  apt  to  prevail. 

§  359.  Besides  this  general  power  of  regulat- 
ing commerce  in  all  its  branches,  the  Constitu- 
tion mentions  several  specific  subjects,  which, 
though  included  in  the  commercial  powers,  assist 
in  explaining  its  scope  and  extent.  They  are 
neither  specifications,  limitations,  nor  extensions, 
but  only  specimens  of  the  great  powers  included 
under  the  general  head  of  regulating  commerce; 


332  LEGISLATIVE  POWERS.  —  SPECIAL. 

A. 

and  are  equally  valid  as  definite  grants  of  power 
to  Congress,  whether  they  are  embraced  in  one 
or  more  prior  or  subsequent  grants  of  power,  or 
whether  they  cover  one  or  more  other  grants. 
The  first  of  these  is  "  to  establish  a  uniform  rule 
of  naturalization."  This,  being  a  branch  of  inter- 
course with  the  people  of  other  States,  is  ob- 
viously a  part  of  the  regulation  of  "  commerce 
with  foreign  nations."  A  "  uniform  rule  "  has 
been  held  to  carry  with  it  the  whole  subject  of 
naturalization  itself,  and  to  be,  like  commerce, 
exclusive  of  any  authority,  on  the  part  of  the 
several  States,  over  the  subject.1 

§  360.  Though  the  authority  is  "to  establish  a 
uniform  rule,"  Congress  have  never  held  their 
power  limited  to  that,  but  always  that  it  extended 
to  the  power  of  granting  naturalization  directly, 
either  in  individual  cases  or  to  whole  classes  of 
people,  without  regard  to  any  uniform  rule  what- 
ever. This  power  of  naturalization,  also,  like  all 
the  other  powers  specifically  vested  in  Congress, 
is  so  only  as  a  part  of  the  general  powers  of  the 
government,  and  by  no  means  as  an  addition  to 
them.  Congress  would  have  had  this  power,  by 
virtue  of  being  the  legislative  department  of  the 
government,  independent  of  this  particular  grant. 
And  although  it  is  here  specifically  named  as  a 
part  of  the  law-making  power,  the  grant  has  not 
been  understood  to  include  the  whole  power  of 

1  1  Kent's  Com.,  397 ;  Chirac  v.  Chirac,  2  Wheat.  E. ;  Houston  v. 
Moore,  6  Wheat.  E. ;  Golden  v.  Prince,  3  Wash.  E. 


LEGISLATIVE  POWERS.  — SPECIAL.  333 

the  government  over  the  subject.  The  President 
and  Senate  have,  by  treaty,  repeatedly  incor- 
porated foreign  territory,  with  all  its  inhabitants, 
granting  all  the  rights  of  citizenship  to  all  the 
people,  of  whatever  race,  color,  or  description.  In 
every  instance,  it  was  agVeed  that  they  should,  in 
due  time,  be  admitted  as  States  into  the  Union. 

§  361.  In  the  case  of  Texas,  a  joint  resolution 
of  the  two  Houses  of  Congress,  of  March  1, 
1845,  authorized  the  admission  of  the  Republic 
of  Texas,  in  either  of  two  modes,  —  by  treaty, 
to  be  negociated  by  the  executive  with  the  Re- 
public of  Texas;  or  by  the  acceptance,  on  the 
part  of  Texas,  of  certain  "  terms,  guaranties, 
and  conditions,"  specified  in  the  resolution.  The 
annexation  was  made,  in  fact,  by  the  accept- 
ance of  the  propositions  of  Congress.  So  that 
the  treaty  was  made  directly  with  Texas  by  Con- 
gress, and  not  by  the  President,  with  the  advice 
and  consent  of  two-thirds  of  the  members  of 
the  Senate,  as  the  treaty-making  power.  In  this 
way,  the  annexation  was  effected  with  the  con- 
sent of  only  a  majority  of  two  in  the  Senate  and 
about  an  equal  proportion  of  the  House,  when  it 
could  not  have  been  done  by  the  constitutional 
majority  of  the  Senate,  as  the  treaty-making 
power.  This  Act  affirms  two  propositions, — 
that  Congress  can  make  a  treaty  with  a  foreign 
nation;  and  that  the  President  and  Senate  may 
do  by  treaty  all  that  Congress  did  in  this  case 
by  joint  resolution. 


334  LEGISLATIVE  POWERS.  —  SPECIAL. 

§  362.  Texas  was  actually  constituted  a  State 
in  the  Union  under  the  Constitution,  with  all 
the  rights  of  other  States,  necessarily  including 
a  foreign  war,  which  Texas  then  had  on  hand, 
and  a  large  war  debt,  which,  by  taking  the 
nation  and  all  its  resources,  we  became  bound  to 
pay.  Here  was  not  only  the  naturalization  of  a 
whole  nation  of  aliens,  both  bond  and  free,  and 
an  admission  of  a  new  State  into  the  Union, 
which  are,  by  the  Constitution,  within  the  ex- 
press powers  of  Congress;  but  substantially  a 
declaration,  by  adoption,  of  a  foreign  war,  and 
an  assumption  of  a  foreign  debt,  both  of  which 
belong  most  emphatically  to  Congress.  All 
these  are  included  in  the  general  powers  and 
purposes  of  the  government,  as  developed  in  the 
introductory  or  enacting  clause  of  the  Constitu- 
tion, or  they  could  not  be  rightfully  exercised  by 
any  department  of  the  government.  Belonging 
regularly  to  the  government,  they  devolve,  on 
the  distribution  of  its  powers,  so  far  as  they  re- 
quire the  making  of  law,  upon  Congress,  which 
is  invested  with  the  whole  legislative  power  of 
the  Constitution.  They  also  belong  to  Congress 
by  this  and  other  express  grants.  ^Nevertheless, 
it  must  now  be  considered  as  settled,  by  the 
practice  of  the  government,  the  admission  of  Con- 
gress, and  the  acquiescence  of  the  nation,  that 
these  powers  also  belong  to  the  President  and 
Senate,  as  the  treaty-making  power;  for  these 
treaties  have  all  been  sanctioned  and  held  valid 


LEGISLATIVE  POWERS.  —  SPECIAL.  335 

by  all  departments  of  the  government  and  people 
of  the  country,  and  continue  in  force  to  this  day. 

§  363.  So  that,  under  this  clause,  Congress 
may  not  only  make  "a  uniform  rule  of  natural- 
ization," but  may  directly  confer  naturalization 
itself  without  any  rule;  and  the  President  and 
Senate  may  do  the  same  by  treaty,  on  the  ground 
that  it  is  a  part  of  the  great  purposes  for  which 
the  government  was  ordained  and  established,  — 
"to  promote  the  general  welfare  of  the  United 
States ; "  and  as  such  not  only  devolves  on  Con- 
gress, as  the  legislative  department  of  the  gov- 
ernment, but  also  on  the  treaty-making  power, 
as  a  co-ordinate  authority  in  establishing  the  law 
of  the  land,  so  far  forth  as  it  may  properly  be 
made  a  matter  of  compact  or  treaty  between  inde- 
pendent States.  No  department  can  exceed  the 
general  powers  and  purposes  of  the  Constitution, 
as  detailed  in  the  introductory  or  enacting  clause ; 
and  if  any  special  power  given  to  any  depart- 
ment or  officer  should,  on  any  construction,  seem 
to  go  beyond  them,  the  difficulty  must  be  recon- 
ciled either  by  restraining  such  construction,  or 
by  considering  such  special  power  only  as  an 
instance  or  specimen,  designed  to  show  the 
breadth  and  extent  of  the  general  powers,  of 
which  it  constitutes  only  a  part. 

§  364.  The  next  specific  power  mentioned  in 
this  8th  section,  and  belonging  to  the  general 
head  of  the  regulation  of  commerce,  is  "  to  es- 
tablish .  .  .  uniform  laws  on  the  subject  of 


336  LEGISLATIVE  POWERS.  — SPECIAL. 

bankruptcies  throughout  the  United  States." 
My  Lord  Coke  derives  the  word  bankrupt  from 
banque,  which  is  mensa,  and  route,  which  is  a 
sign  or  mark;  as  we  say  a  cart-route  is  a  sign  or 
mark  where  a  cart  hath  been  or  gone.  Others, 
among  whom  is  Mr.  Justice  Blackstone,  say  it  is 
derived  from  banque  and  rumpue,  or  bancus  and 
ruptus,  signifying  broken.  In  either  case,  the 
meaning  would  be,  that  the  banque,  the  table, 
or  place  of  payment  and  discount,  is  broken 
up  and  gone.  It  designates  metaphorically,  and 
applies  to,  the  man  who  cannot,  will  not,  or  at 
any  rate  does  not,  pay  his  debts  or  perform  his 
pecuniary  obligations.  The  defect  may  be  vol- 
untary, arising  from  dishonesty  or  fraud;  or  it 
may  be  involuntary,  arising  from  inability  or 
misfortune.  In  both  cases  the  interest  of  the 
parties  requires  the  action  of  the  government,  — 
the  creditor  to  be  secured  against  fraud,  and  the 
debtor  to  be  protected  against  oppression. 

§  365.  "  Perhaps  as  satisfactory  a  description 
of  a  bankrupt  law  as  can  be  framed  is,  that  it  is 
a  law  for  the  benefit  and  relief  of  creditors  and 
their  debtors,  in  cases  in  which  the  latter  are 
unable  or  unwilling  to  pay  their  debts.  And  a 
law  on  the  subject  of  bankruptcies,  in  the  sense 
of  the  Constitution,  is  a  law  making  provisions 
for  cases  of  persons  failing  to  pay  their  debts."1 
The  Constitution  makes  it  the  duty  of  the  gov- 
ernment to  "establish  justice;"  which  involves 

1  3  Story's  Com.,  p.  13,  note. 


LEGISLATIVE  POWERS.  —  SPECIAL.  337 

the  doing  it  themselves,  and  the  administration 
of  it  among  the  people.  It  also  prohibits  the 
States  from  "  impairing  the  obligation  of  con- 
tracts." The  justice  that  enforces  the  exact  or 
partial  performance  of  a  contract,  or  payment  of 
a  debt,  in  a  particular  case;  and  the  justice  that 
protects  the  violation  of  that  duty,  or  discharges 
it,  in  whole  or  in  part,  under  given  circum- 
stances,—  covers  the  whole  law  of  debtor  and 
creditor. 

§  366.  It  decides  when  and  in  what  propor- 
tions the  debtor  can  and  ought  to  pay  a  particu- 
lar creditor,  or  all  his  creditors;  and  when  and 
on  what  terms  his  creditor  or  creditors  shall 
release  him,  or  discharge  the  debt.  This  is  the 
breadth  of  a  law  of  bankruptcies.  To  this  ex- 
tent it  seems  to  be  required  for  the  regulation  of 
commerce;  and  short  of  this  it  could  not  stop, 
consistently  with  the  next  clause,  which  confers 
on  Congress  the  power  to  fix  the  nature  and 
value  of  the  currency  to  be  used  in  payments 
and  exchanges. 

§  367.  The  words  are :  w  To  coin  money,  reg- 
ulate the  value  thereof,  and  of  foreign  coin." 
Money  or  currency  is  an  essential  element  of 
commerce.  It  is  as  much  the  means  or  instru- 
ment of  trade  as  navigation  or  transportation  is 
of  intercourse,  and  is  equally  included  in  the 
regulation  of  commerce.  "It  is  clear  that  the 
power  to  regulate  commerce  among  the  States 
carries  with  it,  not  impliedly,  but  necessarily  and 

22 


V 
338  LEGISLATIVE  POWERS.  —  SPECIAL. 

directly,  a  full  power  of  regulating  the  essential 
element  of  commerce,  namely,  the  currency  of 
the  country,  the  money,  which  constitutes  the 
life  and  soul  of  commerce." l  But  the  Constitu- 
tion has  further  particularized  in  the  words  of 
this  clause.  w  Money  "  is  the  measure  and  rep- 
resentative of  value.  "  To  coin  "  it,  is  to  form, 
fashion,  fabricate,  or  convert  into  w  money,"  any 
thing  of  which  it  may  be  made.  To  "  regulate 
the  value  thereof"  is  to  assign  a  value  to  it  as 
money, — without  reference  to  any  value  it  may 
or  may  not  have,  as  a  material  for  other  purposes 
than  those  assigned  to  it,  —  by  making  it  lawful 
money. 

§  368.  Congress  is  not  restricted  as  to  the 
materials  they  may  make  use  of,  or  their  worth 
or  value,  independent  of  their  authorized  use  as 
money;  nor  is  it  required  that  they  should  have 
any  such  value.  Even  the  operation  of  con- 
verting it  into  money  is  described  only  by  the 
verb  "to  coin,"  which,  if  it  means  any  thing  in 
addition  to  the  act  of  converting  it  into  money, 
includes  only  the  government  stamp,  by  which 
the  act  is  authenticated :  and  even  this  is  doubt- 
ful, for,  at  some  times,  particular  articles  of  mer- 
chandise have  been  made  a  legal  tender  as  money, 
without  a  stamp;  and,  under  our  Constitution, 
foreign  money  has  been  similarly  adopted,  and 
made  lawful  currency,  without  any  mark  of  our 
government  upon  it. 

1  Webster's  Speech  on  the  Surplus  Revenue,  4  Works,  315. 


LEGISLATIVE  POWERS.  —  SPECIAL.  339 

§  369.  From  the  formation  of  the  Union,  in 
1774,  to  the  adoption  of  the  Constitution,  the 
money  of  the  country  was  mostly  paper.  Such 
as  was  metallic  was  composed  of  gold,  silver, 
or  copper,  with  their  respective  amalgams  and 
adulterations.  These  metals,  with  several  others, 
have  been  coined  ever  since ;  and,  at  this  moment, 
(1866),  the  principal  material  of  our  lawful 
money,  in  actual  use,  is  paper.  The  Constitu- 
tion makes  no  limitation  to  either  of  those  mate- 
rials, and  no  exclusion  of  either  or  of  any  other. 
The  mention  made  in  the  10th  section,  of  M  gold 
and  silver  coin,"  plainly  shows  that  there  may  be 
other  coin  which  is  neither  gold  nor  silver;  and 
such  was  the  fact  then,  has  been  ever  since, 
and  is  so  still.  The  valuation  of  "  foreign  coin," 
and  the  offence  of  counterfeiting  "  current  coin," 
are  not  restricted  to  gold  and  silver,  or  any  other 
material.  These  expressions  all  show  that "  coin," 
either  as  a  noun  or  as  a  verb,  has  no  fixed  rela- 
tion to  any  particular  material,  mineral  or  vege- 
table, but  applies  to  any  thing  that  may  be  made 
or  authorized  to  pass  in  payments  and  exchanges 
as  the  lawful  money  of  the  United  States,  whe- 
ther originally  so  denominated  by  our  govern- 
ment, or  in  foreign  countries. 

§  370.  The  power  that  prescribes  what  shall 
be  money,  at  the  same  time  prescribes  what  shall 
not  be,  and  of  course  may  determine  what  may 
or  may  not  be  used  as  substitutes  or  representa- 
tives of  it.  The  government  paper  now  form- 


340  LEGISLATIVE  POWERS.  — SPECIAL. 

ing,  almost  exclusively,  the  currency  of  the 
country,  is  the  money  of  the  country.  It  makes 
no  pretension  to  being  a  substitute  or  represen- 
tative. All  substitutes  for  money  are  redeemable 
in  that;  and  that  is  redeemable  in  nothing,  so 
long  as  it  constitutes  money,  and  is  itself  a  legal 
tender  for  all  the  purposes  of  money. 

§  371.  "  To  fix  the  standard  of  weights  and 
measures  "  is  another  branch  of  the  commercial 
power,  having  a  similar  relation  to  its  principal 
as  is  occupied  by  navigation,  transportation, 
currency,  bankruptcy,  &c.  But  it  has  never 
been  exercised  by  Congress,  and  still  remains'  a 
dormant  power*  In  what  position  this  leaves 
the  law  on  the  subject,  has  not  been  judicially 
decided  or  discussed.  Is  there  any  actual  stand- 
ard for  the  whole  country?  If  so,  what  is  it?  Is 
it  the  one  fixed  by  the  English  law,  before  the 
Revolution?  If  there  is  no  common  standard, 
is  the  one  in  use  in  the  respective  States,  at  the 
adoption  of  the  Constitution,  to  be  applied  in 
each  of  them  respectively;  or  one  since  adopted 
by  any  of  them?  Can  any  other  department  of 
the  government  adopt  or  apply  a  standard,  tem- 
porarily or  specially,  under  these  or  any  other 
circumstances  ? 

§  372.  That  the  power  is  exclusive,  in  the 
sense  that  it  cannot  be  exercised  by  any  whose 
jurisdiction  is  limited  to  a  part  of  the  country 
only,  is  most  obvious.  But  is  it  exclusive  in  the 
sense  that  State  legislation  on  the  subject,  under 


LEGISLATIVE  POWERS.  —  SPECIAL.  341 

all  circumstances,  is  prohibited?1  "When  a  State 
government  is  expressly  prohibited  from  doing  a 
thing,  as  from  granting  letters  of  marque  or 
coining  money,  their  action  on  the  subject  would 
be  absolutely  void.  When  a  power  is  limited 
to  the  general  government  exclusively,  in  ex- 
press terms,  as  in  the  case  of  the  District  of 
Columbia,  certain  forts,  dockyards,  &c.,  any 
State  legislation  would  also  be  void.  In  these 
two  ways  only,  by  an  express  prohibition  or  an 
express  exclusion,  does  the  Constitution  directly, 
proprio  vigore,  take  away  or  restrain  the  exer- 
cise of  State  legislation.  When  a  power  is  sim- 
ply delegated  to  the  general  government,  such 
grant  in  no  way  directly  interferes  with  State 
legislation  or  individual  action.  The  exercise 
of  the  power  may  do  both,  or  either;  but  the 
Constitution  itself,  by  such  a  provision,  does 
neither. 

§  373.  If,  from  the  nature  of  the  power,  the 
object  and  effect  of  its  exercise  is  to  make  a 
uniform  system  of  paramount  law  and  adminis- 
tration for  the  whole  country,  it  necessarily 
supersedes  all  inferior  jurisdictions,  and  becomes 
exclusive,  from  its  very  nature  ;  because  any 
external  interference  with  it  would  obstruct  the 
national  authority,  and  destroy  the  uniformity 
demanded.  Of  this  nature  are  laws  regulating 
foreign  commerce,  which  have  been  decided  to 

1  By  the  Act  of  1866,  Congress  have  authorized  the  use  of  the  metric 
system  of  weights  and  measures,  since  the  foregoing  was  written. 


342  LEGISLATIVE  POWERS.  —  SPECIAL. 

be  exclusive.  But  if,  without  any  such  reason 
for  an  implied  or  consequential  exclusion,  a  par- 
ticular power  is  delegated  to  Congress,  it  is, 
though  not  necessarily  exclusive,  necessarily  su- 
preme ',  and,  of  course,  Congress  may,  if  they 
please,  prohibit  any  interference  with  their  au- 
thority, as  well  by  addition  as  by  subtraction.1 

§  374.  An  instance  of  this  is  furnished  by  the 
post-office.  Congress  has  not  only  w  established 
post-offices,"  but  given  their  establishment  an 
entire  monopoly  of  certain  kinds  of  busines's, 
even  punishing  as  a  crime  any  participation  in 
them,  by  virtue  of  State  authority  or  otherwise.2 
These  principles  are  plain  and  practical,  so  far 
as  they  respect  subjects  that  are  single  and  indi- 
visible. But  when  applied  to  subjects  that  are 
compound,  involving  particulars  numerous  and 
complicated,  questions  of  more  or  less  difficulty 
may  arise.  '  Take,  for  instance,  the  great  subject 
of  foreign  commerce,  —  only  one  department  of 
the  whole  commercial  power.  The  Supreme 
Court  have  decided  that  it  belongs  to  Congress 
exclusively.  It  includes  particulars  almost  in- 

1  "  It  is  obvious,  that  in  those  cases  in  which  the  United  States  may 
exercise  the  right  of  exclusive  legislation,  it  will  rest  with  Congress  to 
determine  whether  the  general  government  shall  exercise  the  right  of 
punishing  exclusively,  or  leave  the  States  at  liberty  to  exercise  their  own 
discretion."  —  Houston  v.  Moore,  5  Wheat.,  33,  per  Johnson,  J. 

2  "  This  power  is  exercised  by  the  single  act  of  making  the  establish- 
ment. But  from  this  has  been  inferred  the  power  and  duty  of  carrying 
the  mail  along  the  post-road,  from  one  post-office  to  another.  And  from 
this  implied  power  has  again  been  inferred  the  right  to  punish  those  who 
steal  letters  from  the  post-office,  or  rob  the  mail."  —  Per  Marshall,  C.  J., 
in  McCulloch  v.  Maryland,  4  Wheat.  E.,  417. 


LEGISLATIVE  POWERS.  — SPECIAL.  343 

numerable.  Suppose  Congress  to  have  neglected 
the  construction  of  a  suitable  lighthouse,  break- 
water, beacon,  pier,  or  buoy,  in  some  harbor 
Within  a  State.  It  is  a  part  of  the  power  to 
regulate  commerce.  In  what  sense  is  it  exclu- 
sive ? 

§  375.  Would  it  be  unconstitutional  for  a  man, 
interested  in  the  navigation  of  the  harbor,  to  set 
up  a  lantern  to  guide  in  his  ship  in  a  dark  night  j 
or  even  to  induce  his  neighbors  similarly  situ- 
ated, his  insurance  company,  his  town,  city,  or 
State,  to  join  with  him  in  defraying  the  expense 
of  establishing  and  maintaining  it?  A  standard 
of  weights  and  measures  for  the  country  is  also 
an  exclusive  national  authority,  not  only  as  a 
part  of  commerce,  but  also  from  the  extent  of 
its  operation;  none  but  a  national  power  being 
competent  to  it.  But  suppose  the  general  gov- 
ernment do  nothing,  —  as  they  have  heretofore 
done  with  this,  and  some  other  subjects  dele- 
gated to  them,  —  may  not  a  man  have  a  uniform 
standard  for  himself?  and  may  not  a  town,  city, 
or  State  adopt  the  same,  or  a  different  one,  for 
all  who  acknowledge  their  jurisdiction,  so  long 
as  they  interfere  with  no  paramount  law?  Such 
is  the  condition  of  the  law  of  weights  and  mea- 
sures. Congress,  having  all  power  over  the 
subject,  has  never  exercised  it.  Either  the  ante- 
revolutionary  law  remains  in  force,  or  such  laws 
as  any  of  the  States  may  have  made  are  substi- 
tuted, or  there  is  none. 


344  LEGISLATIVE  POWER^.  —  SPECIAL. 

§  376.  The  power  "  to  provide  for  the  punish- 
ment of  counterfeiting  the  securities  and  current 
coin  of  the  United  States,"  though  expressly 
conferred,  is  necessarily  an  incident  to  the  power1 
of  making,  regulating,  or  authorizing  the  origi- 
nals so  counterfeited,  and  doubtless  extends  to 
every  thing  authorized  to  be  used  as  money  or 
currency.  ;?  To  define  and  punish  piracies  and 
felonies  committed  on  the  high  seas,  and  offences 
against  the  law  of  nations,"  is  another  commer- 
cial subject,  given  to  Congress  by  a  distinct  and 
special  grant.  Piracies  and  felonies,  as  well  as 
other  offences  against  the  law  of  nations,  may  be 
committed  on  the  high  seas ;  but,  because  so  com- 
mitted, they  may  not  be  exclusively  cognizable 
under  that  law.  If  committed  from  or  on  board 
of  an  American  vessel,  and  by  persons  owing 
even  a  temporary  allegiance  to  the  country,  they 
are  directly  subject  to  our  own  municipal  law, 
and  so  punishable,  independent  of  the  law  of 
nations.  But,  whether  such  acts  are  violations 
of  either  or  both  codes,  they  are  alike  subject  to 
the  jurisdiction  of  Congress,  unless  within  the 
municipal  jurisdiction  of  some  other  nation. 

§  377.  The  high  seas,  the  locus  in  quo,  and 
the  law  of  nations,  the  rule  violated,  both  enter 
into  the  nature  of  the  offence,  and  constitute  a 
part  of  it,  and  of  course  require  defining  for  the 
same  reason.  The  law  of  nations,  which  is  a 
part  of  the  common  law,1  and  like  the  rest  of  it 

1  United  States  v.  Smith,  6  Wheat.  R.,  161. 


LEGISLATIVE  PO WEES.  —  SPECIAL.  345 

an  unwritten  law,  is  here  made  expressly  a  part 
of  our  Constitution,  to  be  enforced  by  our  gov- 
ernment.1 The  high  seas  may  be  defined  by  the 
common  law,  the  civil  law,  or  by  the  maritime 
law;  but  Congress  are  not  bound  by  either:  If 
the  difference  between  piracy  and  robbery  de- 
pends upon  the  line  of  high  or  low- water  mark,  or 
the  state  of  the  tide  between  them,  Congress  may 
define  that  difference.  But  the  law  of  nations  is 
a  part  of  the  law  of  the  land,  and  to  be  executed 
as  such  by  the  proper  departments,  whether  Con- 
gress define  it  or  not.  In  this  manner  it  may 
become  the  duty  of  the  executive  or  the  judi- 
ciary, or  both,  to  find  out  what  the  law  of 
nations  is,  and  to  punish  the  violation  of  it,  even 
without  any  legislation. 

§  378.  We  have  seen  that  the  government, 
under  the  administration  of  Washington,  under- 
took to  know  what  were  the  duties  of  neutrals, 
by  the  law  of  nations,  without  any  definition  of 
Congress ;  and  the  judiciary  were  called  upon 
and  actually  undertook  to  inquire,  with  a  view 
to  punish,  the  breach  of  them  without  legis- 
lative assistance.  Both  the  executive  and  judi- 
ciary have  had  abundant  occasion  since  to  study 
the  rights  and  duties  of  war,  by  the  law  of 

1  "  As  a  part  of  the  Constitution,  written  or  unwritten,  of  all  govern- 
ments, stand  the  laws  of  nations,  necessarily,  inevitably,  from  the  relations 
which  all  communities  bear  to  each  other,  and  from  the  contingencies  to 
which  they  are  exposed.  That  being  the  case,  and  that  unwritten  law  of 
nations  being  actually  a  part  of  our  written  law,  we  accept,  as  we  must 
accept,  all  the  consequences  which  follow  from  it."  —  Senator  Fessenden's 
speech  on  the  Freedmen's  Bureau,  in  the  Senate,  Jan.  23,  1866. 


\     • 

346  LEGISLATIVE  POWERS.  — SPECIAL. 

nations,  without  a  definition  by  the  legislature; 
and  have  found  authority  to  execute  them,  in 
the  principles  of  the  common  law,  as  the  houses 
of  Congress  have  found  authority  to  punish  for 
contempts,  without  legislation.  The  different 
codes  referred  to,  and  adopted  by  our  Con- 
stitution, as  constituting  a  part  of  our  system, 
have  to  be  carried  into  effect  by  the  executive 
and  the  judiciary,  whenever  circumstances  re- 
quiring their  application  are  brought  respect- 
ively under  their  official  cognizance.  But  all 
w  the  laws  necessary  and  proper  "  to  render  their 
execution  adequate  and  effective  have  not  been 
supplied  by  Congress.  The  decisions  of  the 
courts  on  this  subject,  and  the  clause  of  this 
section  w  to  constitute  tribunals  inferior  to  the 
Supreme  Court,"  will  be  considered  when  we 
come  to  Article  III.,  on  the  judiciary. 

§  379.  The  only  remaining  topic  of  this  sec- 
tion, directly  connected  with  the  commercial 
power,  is  "to  establish  post-offices  and  post- 
roads."  By  the .  authority  of  two  short  words, 
"  establish  post-offices,"  the  government  have 
instituted  an  establishment  employing  more  men, 
controlling  more  patronage,  and  collecting  and 
disbursing  more  revenue,  than  sufficed,  within  a 
few  years  past,  for  the  administration  of  the 
whole  government.  In  1860,  there  were  28,586 
postmasters.  Mails  were  annually  transported 
more  than  eighty  millions  of  miles;  and  the  ex- 
penditures were  $19,170,609.  The  estimates  for 


LEGISLATIVE  POWERS.  —  SPECIAL.  347 

the  annual  expenses  are  still  kept  within  twenty 
millions;  but  there  can  be  only  slender  reasons 
for  the  faith,  that  the  receipts  and  expenditures 
of  future  fiscal  years  will  not  soon  foot  up  to  the 
formidable  amount  of  forty  millions  of  dollars. 
Of  the  aggregate  amount  of  the  whole  army  of 
officers,  agents,  contractors,  and  employees  of  the 
department,  no  enumeration  has  been  found. 

§  380.  The  code  of  laws  and  regulations  for 
hiring,  purchasing,  building,  occupying,  repair- 
ing, protecting,  and  improving  the  places  of 
business ;  defining,  extending,  and  defending  the 
nature  and  character  of  their  monopoly  of  the 
letter  and  newspaper  transportation;  and  con- 
trolling, by  fines,  penalties,  and  punishments,  all 
illegal  interferences  therewith, — would  constitute 
a  mass  of  learning  sufficiently  formidable  to  try 
the  courage  of  any  student  whose  duty  it  might 
become  to  collect,  understand,  and  digest  them. 
^Notwithstanding  the  magnitude  and  extent  of 
this  important  and  formidable  establishment,  the 
whole  of  which  has  been  built  up  and  maintained, 
incidentally  and  inferentially,  on  so  small  a 
foundation,  it  has  encountered  fewer  constitu- 
tional difficulties,  and  been  subjected  to  fewer 
constitutional  impediments,  than  any  other  im- 
portant power  of  the  government,  though  ever  so 
elaborately  defined  and  expounded,  and  though 
interfering  much  less  with  the  daily  lives  and 
business  of  the  people. 

§  381.  The  verb  "establish,"  which  covers  the 


348  LEGISLATIVE  POWERS.  —  SPECIAL. 

whole  action  of  the  government  in  the  case,  is 
applied  with  the  same  force  and  directness  to 
"  post-roads,"  and  of  course  has  a  meaning 
equally  broad  and  extensive  in  regard  to  both 
subjects.  Although  this  part  of  the  clause  has 
been  the  occasion  of  little  legislation,  in  conse- 
quence of  the  multiplicity  of  roads  and  highways 
already  established  by  other  agencies  and  for 
other  purposes,  yet  the  words  "establish  post- 
roads  "  are  a  part  of  the  Constitution,  and  may 
be  applied  to  use,  whenever  a  proper  occasion 
for  the  purpose  may  arise.  The  idea  that  the 
government  of  the  United  States  is  dependent 
on  the  States  or  on  private  corporations,  or  any 
body  else,  for  a  right  of  way,  over  which  to  con- 
vey their  mails,  is  not  likely  to  be  suggested  by 
any  body,  or  to  be  much  heeded  if  it  should  be. 
The  little  that  has  already  been  done  in  that 
direction  is  sufficient  to  silence  any  such  preten- 
sion, if  there  were  any  ground  for  making  it. 


CHAPTER    XXIII. 

LEGISLATIVE   POWERS.  —  SPECIAL. 
The  War  Powers. 

§  382.  THE  other  great  division  of  the  powers 
of  Congress,  included  in  the  8th  section,  is  the 
one  embracing  those  necessary  or  appropriate 
to  the  "  common  defence  of  the  United  States." 
This  great  duty  is  devolved  on  the  government, 
by  its  annunciation  in  the  first  sentence  of  the 
Constitution,  as  one  of  the  purposes  for  which  it 
was  ordained  and  established  by  the  American 
people.  So  far  as  it  requires  legislation,  the 
duty  is  devolved  on  Congress  by  its  being  made 
the  legislative  department  of  the  government, 
and  vested  with  "  all  the  legislative  powers " 
thereof.  It  is  again,  and  still  more  specifically 
and  emphatically,  delegated  to  Congress  in  the 
first  clause  of  this  section;  which,  as  we  have 
seen,  either  authorizes  them  to  do  it  by  raising 
and  appropriating  money  for  the  purpose,  or 
more  generally,  and  without  reference  to  money; 
and  it  is  of  no  importance  which,  for  in  either 
case  it  is  one  of  the  powers  vested  in  the  gov- 

[349] 


350  LEGISLATIVE  POWERS.  — SPECIAL. 

eminent,  and  in  this  department  of  the  govern- 
ment ;  and  so  Congress  afe  to  pass  all  laws 
necessary  and  proper  for  its  execution. 

§  383.  Several  of  the  means  for  effecting  this 
purpose  are  specified  in  this  section.  "To  declare 
war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  or  water; 
to  raise  and  support  armies;  to  provide  and 
maintain  navies;  to  make  rules  for  the  govern- 
ment and  regulation  of  the  land  and  naval  forces ; 
to  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  Union,  suppress  insurrections, 
and  repel  invasions;  to  provide  for  arming  and 
disciplining  the  militia,  and  governing  such  part 
of  them  as  may  be  employed  in  the  service  of 
the  United  States."  These  are  commonly  called 
the  war  powers,  and  are  examples,  but  by  no 
means  specifications,  of  all  the  measures  that  may 
be  adopted  for  the  execution  of  the  more  gen- 
eral power  and  duty  of  providing  for  the  "  com- 
mon defence  ...  of  the  United  States."  They 
are  all  duplications  of  that  power  in  part;  and 
several  of  them  are  reduplications  and  pleonasms 
in  respect  to  each  other.  The  power  to  make 
and  carry  on  war  includes  all  the  rest;  and  the 
power  to  provide  armies  and  navies  includes 
the  power  to  regulate  and  govern  them.  The 
militia,  when  called  forth  as  a  part  of  the  na- 
tional forces,  may  be  governed  as  such;  and  yet 
an  additional  provision  is  made  for  the  particular 
purpose.  The  rights  and  duties  of  war  are  to  be 


LEGISLATIVE  POWERS.  —  SPECIAL.  351 

exercised  subject  to  the  law  of  nations.  Belli- 
gerent enemies  and  friends,  non-combatant  ene- 
mies and  neutrals,  whether  nations  or  individuals, 
are  alike  to  be  judged  by  it;  and  a  treatise  upon 
the  subject  would  involve  a  discussion  of  all  the 
principles  and  usages  of  the  law  of  nations.1 
But  the  rights  and  duties  themselves,  when  as- 
certained, are  to  be  executed  and  performed  by 
such  "necessary  and  proper"  means,  consistent 
with  the  law  of  nations,  as  Congress  may  adopt. 
§  384.  As  a  declaration  of  war  is  not  essential 
to  its  existence,  and  as  a  war  may  be  made  upon 
the  country  without  it,  so  doubtless  the  United 

1  "  The  legal  consequences  resulting  from  a  state  of  war  between  two 
countries,  at  this  day,  are  well  understood,  and  will  be  found  described  in 
every  approved  work  on  the  subject  of  international  law.  The  people  of 
the  two  countries  become  immediately  the  enemies  of  each  other;  all 
intercourse,  commercial  or  otherwise,  between  them,  unlawful;  all  con- 
tracts existing  at  the  commencement  of  the  war,  suspended;  and  all  made 
during  its  existence,  utterly  void.  The  insurance  of  enemies'  property, 
the  drawing  of  bills  of  exchange  or  purchase  on  the  enemies'  country,  the 
remission  of  bills  or  money  to  it,  —  are  illegal  and  void.  Existing  part- 
nersliips  between  citizens  or  subjects  of  the  two  countries  are  dissolved ; 
and,  in  fine,  interdiction  of  trade  and  intercourse,  direct  or  indirect,  is 
absolute  and  complete  by  the  mere  force  and  effect  of  war  itself.  All  the 
property  of  the  people  of  the  two  countries,  on  land  or  sea,  are  subject  to 
capture  and  confiscation  by  the  adverse  party,  as  enemies'  property ;  .  .  . 
all  treaties  between  the  belligerent  parties  are  annulled.  The  ports  of 
the  respective  countries  may  be  blockaded,  and  letters  of  marque  and 
reprisal  granted,  as  rights  of  war ;  and  the  law  of  prizes,  as  defined  by  the 
law  of  nations,  comes  into  full  and  complete  operation,  resulting  from  mari- 
time captures,  jure  belli.  War  also  effects  a  change  in  the  mutual  relations 
of  all  states  or  countries,  —  not  directly,  as  in  the  case  of  belligerents ; 
but  immediately  and  indirectly,  though  they  take  no  part  in  the  contest,  but 
remain  neutral.  This  great  and  pervading  change  in  the  existing  condition 
of  a  country,  and  in  the  relations  of  all  her  citizens  or  subjects,  external 
and  internal,  from  a  state  of  peace,  is  the  immediate  effect  and  result  of 
a  state  of  war."  —  Brilliant  et  al.  v.  United  States,  The  Prize  Cases,  2 
Black's  Rep.  » 


352  LEGISLATIVE  POWERS.  —  SPECIAL. 

States  may  make  a  war  upon  a  foreign  State 
without  it.  "Within  the  present  century,  we  have 
had  three  public  wars.  That  with  England,  in 
1812,  was  initiated  formally  by  Congress  with  a 
statutory  declaration.  That  with  Mexico,  in  1846, 
Congress  declared  was  instituted  by  Mexico, 
without  their  agency.  The  last,  with  the  South- 
ern rebellion  of  1861,  had  been  in  operation 
several  months  before  Congress  were  convened 
to  .consider  it,  and  never  was  declared  at  all. 
Armies  and  navies  may  be  assembled  and  organ- 
ized by  voluntary  enlistment,  by  draft,  by  requi- 
sition of  militia,  or  perhaps  even  by  impressment, 
or  any  other  method  in  use  among  civilized 
nations.  In  calling  out  the  militia,  it  has  not 
been  the  most  usual  method  to  call  them  by  regi- 
ments, brigades,  and  divisions,  with  their  officers, 
in  their  organized  state;  but  to  require  the  num- 
ber they  want,  in  such  form  as  they  please.  As 
they  are  authorized  to  govern  them  while  in  the 
service,  they  may  doubtless  organize  and  govern 
them  by  their  own  appointees,  if  that  is  judged  to 
be  the  most  expedient  course. 

§  385.  A  declaration  of  war  is  essentially  a 
declaration  of  martial  law,  —  a  substitution  of 
war,  the  rights  of  war,  and  the  laws  of  war;  for 
peace,  the  rights  and  law  of  peace;  the  one  co- 
extensive with  the  other.  It  is  not  intended  to 
be  less  a  system  of  right  and  justice,  or  to  ex- 
clude or  supersede  the  ordinary  administration 
of  it,  except  so  far  as  that  may  fail  or  be  inade- 


LEGISLATIVE  POWERS.  —  SPECIAL.  353 

quate,  or  its  processes  come  in  competition  with 
or  impede  the  successful  accomplishment  of  the 
paramount  objects  of  the  war.  More  than  this 
would  exceed  the  rights  and  duties  of  war, 
according  to  martial  law;  and  less  might  com- 
promit  its  success,  which  it  is  the  whole  object 
of  martial  law  to  secure.  Every  thing  being  at 
stake  in  war,  when  "  the  existence  of  the  civil 
depends  upon  the  military  power," l  every  thing 
must  be  made  to  contribute  to  its  success,  to  the 
full  extent  of  its  necessities.  Martial  law,  as  a 
part  of  the  law  of  nations,  and  of  the  common 
law,  is  a  part  of  the  Constitution  of  the  United 
States  anct  of  the  supreme  law  of  the  land.  The 
rights  and  duties  of  belligerents  and  neutrals, 
whether  nations  or  individuals,  and  the  mode  of 
pursuing  them,  are  determined  by  it.  When  in 
force, — that  is,  in  war, — it  is  in  the  hands  of  the 
same  executive,  under  the  name  of  commander- 
in-chief,  who  is  bound  to  see  to  the  execution  of 
all  other  law;  but  he  acts  in  this  by  an  entirely 
different  set  of  agents,  and  under  an  entirely 
different  responsibleness.  In  the  one,  they  are 
bound,  for  the  time  being,  ...  to  implicit  obe- 
dience; in  the  other,  they  are  expected  to  know 
and  conform  to  the  law.  The  Supreme  Court 
have  often  disclaimed  the  administration  of  mar- 
tial law,  on  the  ground  that  it  formed  no  part  of 
the  judicial  power  of  the  United  States;2  and  it 

1  General  Greene. 

2  "  With  the  sentences  of  courts-martial,  which  have  been  convened 
regularly,  &c.,  .  .  .  civil  courts  have  nothing  to  do,  nor  are  they  in  any 

23 


354  LEGISLATIVE  PO WEES.  —  SPECIAL. 

\ 

is  fortunate  that  it  is  so,  for  certainly  no  duty  more 
ridiculously  inappropriate  could  be  imposed  upon 
a  learned  bench  of  venerable  judges,  accustomed 
to  listen,  deliberate,  and  decide,  by  "  bell,  book, 
and  candle,"  grave  questions  of  civil  jurispru- 
dence, than  to  assign  them  to  the  prompt,  extem- 
poraneous, and  sometimes  arbitrary,  direction  of 
military  operations  and  martial  tribunals.  These 
belong  to  military  men,  acting,  for  the  time 
being,  under  a  military  responsibility,  though 
their  controlling  head  is  a  civil  as  well  as  mili- 
tary officer,  bound  by  civil  law,  and  to  a  civil 
accountability;  to  which  also  all  military  men 
are  equally  answerable  at  all  other  times.  The 
complicated  relations  between  the  two  systems, 
though  vastly  important  and  little  understood,1 

•way  alterable  by  them.  If  it  were  otherwise,  the  civil  courts  would  vir- 
tually administer  the  rules  and  articles  of  war,  irrespective  of  those  to 
whom  that  duty  and  obligation  has  been  confided  by  the  laws  of  the 
United  States,  from%whose  decisions  no  appeal  or  jurisdiction  of  any  kind 
has  been  given  to  the  civil  magistrate  or  civil  courts."  —  Dynes  v. 
Hoover,  20  Howard's  Kep.,  78. 

1  This  at  least  is  made  abundantly  manifest  by  the  recent  case  of 
ex  parte  Milligan,  in  the  Supreme  Court,  December  term,  1866,  whatever 
else  may  or  may  not  be  proved  by  it. 

Since  the  above  was  written,  the  following  has  appeared  in  the 
Gazettes,  as  the  view  taken  of  the  Milligan  case  by  the  Secretary  of 
War:  — 

"  I  believe  that  Milligan  was  properly  convicted.  I  am  of  the  opinion,  that  a 
true  exposition  of  the  law  of  this  country,  and  of  every  other  civilized  country 
of  the  globe,  justifies  me  in  saying  that  trials,  convictions,  and  sentences,  by 
military  tribunals,  were  perfectly  legal.  I  do  not  think  that  the  decision  in  the 
Milligan  case  is  justified  by  any  principle  of  law  recognized  by  any  civil  govern- 
ment on  earth.  It  is  wholly  inconsistent  with  the  protection  of  persons  in  the 
military  service,  or  with  the  preservation  of  peace  and  safety  in  any  State  in 
insurrection." 

The  guilt  of  the  party,  in  this  case,  was  not  denied  or  even  ques- 
tioned. "  Judex  damnatur  cum  nocens  absolvitur." 


LEGISLATIVE  POWERS.  —  SPECIAL.  355 

are  too  extensive  to  admit  of  discussion  here. 
It  is  obvious,  however,  to  remark,  that  if  no 
validity  is  allowed  to  the  results  of  martial  law 
in  time  of  war,  and  no  immunity  is  accorded  to 
the  necessary  agents  for  administering  it  under 
orders  from  their  superiors  and  the  approval  of 
the  chief  executive,  both  civil  and  military,  of  the 
nation,  any  longer  than  power  remains  in  their 
own  hands,  — the  instinct  of  self-preservation  may 
sometime  suggest  to  them  the  desire  to  postpone 
the  period  when  they  will  be  held  personally  ac- 
countable for  all  the  evils  that  the  exigencies  of 
war,  and  the  necessities  of  "common  defence," 
may  have  brought  upon  individuals,  however 
guilty  or  only  unfortunate  they  may  have  been. 
The  President,  too,  might  sometime  find  himself 
in  an  awkward  position,  if —  having  appointed  a 
military  tribunal  in  time  of  war,  accepted,  ap- 
proved, and  executed  its  decision,  in  conformity  to 
martial  law  —  he  should  afterwards,  in  time  of 
peace,  be  called  upon,  as  "the  executive,"  to  hang 
a  few  of  his  military  officers  for  obeying  his  own 
orders,  when  they  would  have  been  liable  to  be 
shot  for  disobedience  had  they  done  otherwise. 
If  war,  its  rights,  its  law,  —  martial  law,  —  is 
limited  to  operate  only  in  places  where  the  com- 
mon-law courts  are  forcibly  suppressed,  the 
rebels  should  have  held  their  Congress,  managed 
their  government,  and  concocted  and  directed  all 
the  military  operations  of  their  rebellion,  from 
Indiana  or  Illinois,  or  even  from  Washington  or 


356  MISCELLANEOUS  POWERS. 

Baltimore,  rather  than  from  Richmond.  There 
would  have  been  no  more  danger  from  the  inter- 
ference of  courts  of  law  in  either  place,  than  if 
they  had  all  been  driven  out  by  the  enemy ;  as 
in  that  case  they  certainly  would  have  been. 

* 

MISCELLANEOUS  POWERS. 

§  386.  The  remaining  items  of  the  8th  section 
to  be  considered  under  this  head  ar^  only  three. 
"  To  promote  the  progress  of  science  and  useful 
arts,  by  securing,  for  limited  times,  to  authors 
and  inventors,  the  exclusive  right  to  their  re- 
spective writings  and  discoveries."  Authors  and 
inventors  had  been  held  to  be  entitled,  at  com- 
mon law,  to  a  property  in  the  results  of  their 
respective  labors,  long  before  the  date  of  the 
Constitution.  It  was  doubtless  in  recognition 
of  this  common-law  right  that  this  clause  was 
inserted. 

§  387.  The  power  has  been  exercised  by  pro- 
viding for  copyrights  and  patent-rights;  but  as 
the  power  includes  both  the  object  and  the 
means,  giving  both  to  Congress,  if  they  should 
grant  copy  and  patent  rights  from  other  motives 
than  to  promote  science  and  art,  or  if  they 
should  promote  science  and  art  by  other  means 
than  securing  the  rights  of  authors  and  invent- 
ors, the  discretion  of  Congress  over  the  whole 
subject  could  not  be  controlled.  It  has  not  been 
held  to  be  exclusively  a  power  of  Congress,  nor 


MISCELLANEOUS  POWERS.  357 

to  extend  to  other  modes  of  introducing  and 
bringing  into  use  valuable  works  of  either  sort, 
than  by  authorship  and  invention.  Though  care 
has  been  taken  to  prevent  the  copyright  or 
patent-right  from  coming  into  the  possession  of 
any  one  but  the  party  entitled,  it  has  not  been 
held  that  any  summary  mode  of  settling  that 
right  can  oust  the  judiciary  of  its  ultimate  juris- 
diction in  settling  all  such  questions. 

§  388.  "  To  exercise  exclusive  legislation  in  all 
cases  whatsoever,  over  such  district  (not  exceed- 
ing ten  miles  square)  as  may,  by  cession  of  par- 
ticular States  and  the  acceptance  of  Congress, 
become  the  seat  of  the  government  of  the  United 
States,  and  to  exercise  like  authority  over  all 
places  purchased,  by  the  consent  of  the  legisla- 
ture of  the  State  in  which  the  same  shall  be,  for 
the  erection  of  forts,  magazines,  arsenals,  dock- 
yards, and  other  needful  buildings."  This  pro- 
vision was  not  contained  in  any  original  or  early 
draft  of  a  Constitution,  though  the  topics- were 
all  suggested  in  the  South-Carolina  Plan;  but 
was,  on  the  report  of  a  committee,  late  in  the 
session,  adopted  in  its  present  form,  without 
opposition.  The  territory  to  which  it  applies  is 
distinctly  described,  and  includes  the  govern- 
mental district  and  such  "  other  places  "  as 
may  be  w  purchased,  with  the  consent  of  the 
legislature  of  the  State,"  for  the  purposes 
named. 

§  389.  In  regard  to   the   governmental  dis- 


358  MISCELLANEOUS  POWERS. 

trict,  it  must  be  ceded  by  the  State.  In  regard 
to  the  "  other  places,"  they  may  be  purchased  of 
individuals;  and  the  State  has  no  other  neces- 
saiy  concern  with  it  than  "  by  the  consent  of 
its  legislature  "  to  the  purchase.  Those  things 
being  done  in  the  respective  cases,  the  State  in 
which  the  places  are  situated  have  relinquished, 
in  the  form  required  and  rendered  effectual  by 
the  Constitution,  all  their  right  of  government 
or  jurisdiction  over  them.  The  consequence  is, 
that  the  general  government,  which  before  had 
the  same  authority  over  them  that  they  had  over 
the  rest  of  the  United  States,  now  becomes  the 
sole  authority,  to  the  exclusion  of  that  of  the 
State.  These  acts  place  the  districts  in  question 
in  the  same  relation  to  the  government  that  the 
Territories  stand  by  the  3d  section  of  the  fourth 
Article,  subject  to  the  exclusive  legislation  of 
Congress,  —  Congress  being  here  and  every- 
where the  legislature  of  the  nation,  and  gov- 
erning the  whole  land  by  virtue  of  the  powers, 
and  subject  to  the  restrictions,  of  the  Constitu- 
tion.1 "The  power  to  'make  all  needful  rules 
and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States  '  is  not 
more  comprehensive  than  the  power  f  to  make  all 
laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution '  the  powers  of  the  gov- 
ernment." 

1  McCulloch  P.  Maryland,  4  Wheat.,  422,  the  Supreme  Court,  per 
Marshall,  C.  J. 


MISCELLANEOUS  POWEES.  359 

§  390.  The  State  transfers  no  political  power, 
and  does  not  purport  to  do  so.  The  Constitution 
confers  on  them  no  such  right.  All  the  Consti- 
tution authorizes  is  to  transfer,  or  consent  to  the 
transfer  of,  the  title,  and  thereby  to  extinguish  or 
relinquish  their  own  political  power  quoad  hoc. 
But  the  government  of  the  United  States  takes 
no  political  power  by  transfer,  and  could  not  ex- 
ercise it  if  they  did.  All  their  political  power  is 
held  under,  and  by  virtue  of,  the  Constitution. 
This  clause  confers  on  them  no  new  power,  but 
the  right  to  receive  and  hold  the  territory  in 
question  for  the  purposes  specified,  and  then  to 
govern  it,  as  they  do  the  rest  of  the  country, 
under  the  Constitution,  only  exclusively;  that  is, 
"exclusive"  of  the  State  authority.  The  idea 
that,  under  the  words  w  exclusive  legislation," 
Congress  can  claim  an  absolute,  unlimited,  and 
boundless  authority,  independent  of  the  provi- 
sions and  restraints  of  the  Constitution,  is  not 
consistent  with  the  language  or  logic  of  the  in- 
strument. "Who  ever  supposed  that  they  could 
pass  a  "  bill  of  attainder,  or  ex  post  facto  law," 
or  grant  a  w  title  of  nobility,"  any  more  for  the 
district  of  Columbia  than  they  could  for  the  rest 
of  the  country? 

§  391.  The  restraints  of  the  Constitution  are 
no  more  applicable  to  this  clause  than  the  grants 
are.  "Whatever  of  either  belongs  to  the  legis- 
lative power  of  the  government,  applies  as  well 
to  the  district  as  to  the  rest  of  the  United  States. 


360  MISCELLANEOUS  POWERS. 

But  this  clause  makes  no  addition  to  that  power, 
the  word  "  exclusive  "  being  neither  an  enlarge- 
ment nor  a  qualification.  Congress  may  undoubt- 
edly so  legislate  as  to  "  provide  for  the  common 
defence,  promote  the  general  welfare,  and  secure 
the  blessings  of  liberty "  there,  which  covers 
every  thing  that  any  good  government  can  do, 
there  or  anywhere  else ;  not  because  the  power  is 
granted  by  the  words  exclusive  legislation,  but 
because  it  is  a  part  of  the  avowed  purposes 
of  the  Constitution,  and  expressly  delegated  to 
Congress  as  the  legislative  department,  to  be 
exercised  for  the  benefit  of  all  the  people  of  the 
United  States. 

§  392.  "In  all  cases  whatsoever"  is  no  en- 
largement of  the  power.  If  the  power  exists,  it 
may  be  applied  to  all  cases  as  well  as  to  any. 
In  the  case  of  Cohens  v.  Virginia,1  an  attempt 
was  made  to  consider  Congress,  when  acting 
under  this  clause,  as  a  mere  local  legislature,  and 
not  administering  the  supreme  law  of  the  land,  by 
virtue  of  the  general  powers  of  the  Constitution. 
But  the  Supreme  Court  held  directly  the  con- 
trary,— that  the  power  belonged  to  "Congress, 
as  the  legislature  of  the  Union;  for  strip  them 
of  that  character,  and  they  would  not  possess  it. 
In  no  other  character  can  it  be  exercised.".  .  . 
"Congress  is  not  a  local  legislature,  but  exer- 
cises this  particular  power,  like  all  its  other 
powers,  in  its  high  character,  as  the  legislature 

1  6  Wheat.  Rep. 


MISCELLANEOUS  POWERS.  361 

of  the  Union."1 — "Exclusive  legislation"  is  sole 
legislation,  propria  virtus,  not  participated  with 
another. 

§  393.  It  has  been  sometimes  imagined,  that 
Congress  could  do  some  things  in  those  places 
not  authorized  to  be  done  elsewhere.  As  in- 
stances of  this  kind,  the  establishment  of  a  bank, 
an  institution  of  learning,  giving  freedom  to 
slaves,  and  granting  the  right  of  suffrage  to 
colored  citizens,  have  been  frequently  mentioned. 
But  the  idea  is  considered  to  be  wholly  errone- 
ous. Not  that  these  things  may  not  be  done, 
for  most  of  them  have  been  done;  but  that  the 
authority  for  doing  them  is  not  local,  or  derived 
from  this  clause  of  the  8th  section,  but  is  gen- 
eral, and  derived  from  the  general  and  avowed 
objects  of  the  Constitution,  which  constitute  the 
rights  and  duties  of  the  government,  and  are 
assigned  directly  to  Congress  by  the  1st  section, 
which  makes  it  the  legislative  department,  and 
vests  in  it  "all  the  legislative  powers"  of  the 
government ;  and  again,  by  the  first  clause  of 
the  8th  section,  which  authorizes  them  specially 
"  to  provide  for  the  common  defence  and  general 
welfare," — two  particulars  of  the  great  purposes 
of  the  Constitution,  and  of  all  good  government, 
which  comprehend  and  include  all  others. 

§  394.  It  does  not  follow,  that  because  the 
legislative  powers  of  Congress,  under  the  Con- 

1  Opinion  of  the  Court,  per  Marshall,  C.  J.,  6  Wheat.  Rep.  See  also 
5  Wheat.  R.,  817  ;  Loughborough  v.  Blake. 


362  MISCELLANEOUS  POWEKS. 

\ 

stitution,  are  the  same  throughout  the  United 
States,  it  is  expedient  to  legislate  for  all  places 
in  the  same  manner.  The  power  of  Congress 
over  the  district,  &c.,  is  "exclusive;"  therefore 
every  thing  that  is  to  be  done  there  by  legislation 
must  be  done  by  Congress.  But,  in  the  States, 
there  are  subordinate  legislatures.  These,  though 
not  acting  by  virtue  of  any  grant  from  the  Con- 
stitution of  the  United  States,  are  still  authorized 
by  their  State  constitutions  to  legislate,  in  subor- 
dination to  the  restrictions  and  disabilities  cre- 
ated by  the  national  Constitution  and  laws. 
Congress  may  therefore  leave  to  the  State  legis- 
lat'tires  such  portion,  as  in  their  discretion  they 
judge  proper,  of  the  mere  local  interests  and 
jurisdiction  of  the  States,  as  are  not  expressly 
or  impliedly  prohibited  to  them,  by  or  under  the 
Constitution  of  the  United  States.  It  is  on  this 
ground,  and  for  these  important  purposes,  that 
the  local  governments  are  sustained. 

§  395.  For  the  District  of  Columbia,  &c.,  where 
no  such  local  governments  exist,  Congress,  hav- 
ing the  "  exclusive  "  power,  must  exercise  the 
whole.  There  is  a  peculiarity  in  the  mode  of 
expression  in  this  clause,  which  sjeems  necessarily 
to  indicate  this  distinction  in  its  very  terms.  By 
the  other  clauses,  "  Congress  shall  have  power  to 
lay  and  collect,"  w  to  pay,"  "  to  provide,"  "  to  bor- 
row," "  to  regulate,"  w  to  establish,"  &c.,  —  terms 
which  show  an  intention  to  delegate  an  original 
power  of  direct  action.  But  here  it  is  "  Congress 


MISCELLANEOUS  POWERS.  363 

shall  have  power  to  exercise  .  .  .  legislation ; " 
that  is,  to  exercise  a  power  to  make  laws.  It 
does  not  purport  to  grant  an  original  power 
to  make  laws,  so  much  as  to  grant  a  license  to 
exercise,  w  exclusively,"  such  a  power  already 
possessed.  The  real  object  and  effect  of  the 
provision  seems  to  be  to  prescribe  a  mode  of 
extinguishing  the  State  jurisdiction,  and  render- 
ing their  own  ?f  exclusive ; "  and  not  to  make  any 
new  delegation  of  authority  to  the  government 
of  the  United  States,  which  was  already  ample 
without  it. 

§  396.  The  Constitution  of  the  United  States 
is  a  fundamental  law  for  the  whole  country;  and, 
if  it  is  adequate  to  the  exigencies  of  government, 
it  is  competent  to  all  the  purposes  for  which  any 
good  government  was  ever  instituted,  over  the 
whole  United  States,  and  every  part  thereof. 
The  efficiency  of  the  government  is  all  derived 
from  the  Constitution,  and  is  equal  in  all  places 
within  its  jurisdiction.  All  their  power  is  de- 
rived from  it,  and  must  be  exercised  under  it,  and 
is  not  different  in  kind,  or  greater  in  degree,  in 
one  place  than  in  another.  It  is  supreme  every- 
where. It  is  inclusive  of  all  subordinate  govern- 
ments, where  there  are  any;  and  exclusive,  where 
there  are  none.  It  is  permanently  exclusive,  if 
there  can  be  no  other.  It  is  temporarily  exclu- 
sive, till  a  subordinate  is  instituted.  It  becomes 
exclusive  again,  if  a  subordinate  is  extinct, 
whether  by  right  or  by  wrong;  and  it  remains 


364  MISCELLANEOUS  POWERS 

\ 

exclusive,  when  it  is  so,  till  a  subordinate  is  right- 
fully restored. 

§  397.  The  last  item  in  the  8th  section  is, 
"  to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  this  Con- 
stitution in  the  government  of  the  United  States, 
or  in  any  department  or  officer  thereof."  This 
clause  first  appeared,  in  an  abridged  form,  in  the 
South-Carolina  Plan.  In  its  enlarged  form,  it 
was  reported  by  Mr.  Rutledge,  from  the  Com- 
mittee of  Detail,  and  adopted  without  opposition 
by  the  Convention.  By  the  Committee  of  Re- 
vision it  was  again  reported,  with  a  slight  verbal 
alteration,  making  little  addition  and  less  im- 
provement; and  again  adopted  by  the  Conven- 
tion, as  it  now  stands,  without  opposition  or 
discussion.  It  was,  however,  violently  assailed 
before  the  people  and  in  the  State  conventions. 
It  was  called  the  "  sweeping  clause,"  and  repre- 
sented as  conferring  new  and  indefinite,  if  not 
absolutely  unlimited,  powers  of  general  legisla- 
tion, for  all  purposes  whatsoever. 

§  398.  It  was  successfully  defended,  however, 
before  both  tribunals,  and  particularly  in  the 
"  Federalist,"  *  on  the  ground  that  it  was  only 
declarative  of  a  truth  which  resulted  necessarily, 
by  implication,  from  the  fact  of  establishing  a 
government  vested  with  any  certain  and  definite 
rights  and  duties.  The  powers  so  vested,  what- 

i  Nos.  33,  44. 


MISCELLANEOUS  POWERS.  365 

ever  they  might  be,  included  the  means  of 
execution  in  the  very  terms  of  the  grant,  and 
extended  to  all  means  not  excepted  in  the  Con- 
stitution, not  immoral  in  their  nature,  and  not 
contrary  to  the  essential  objects  of  civil  society. 
The  principle  has  been  repeatedly  sanctioned  by 
the  Supreme  Court,  and  stands  in  their  reports, 
embodied  in  the  forcible  and  exact  language  of 
Chief  Justice  Marshall,  that  a  "  power  vested 
carries  with  it  all  those  incidental  powers  which 
are  necessary  to  its  complete  and  effectual  exe- 
cution." 

§  399.  But  even  this  vindication,  conclusive  as 
it  is,  would  almost  seem  to  be  a  work  of  super- 
erogation. Independent  of  this  clause,  the-  Con- 
stitution ordains  and  establishes  a  government 
for  certain  specified  and  avowed  purposes,  and 
divides  it  into  three  departments,  constituting 
Congress  the  legislative  department,  and  vesting 
in  it  "  all  legislative  powers  herein  granted,"  — 
Which  can  mean  nothing  else  than  all  such 
powers  rightfully  held  and  to  be  exercised,  in 
virtue  of  the  Constitution,  for  the  purposes 
thereof.  "What  these  are,  can  be  determined  by 
answering  two  questions,  —  What  are  legislative 
powers?  and,  What  governmental  powers  require 
legislation?  The  first  is  answered  by  the  lexi- 
cographers ;  the  second  by  the  application  of  a 
logical  analysis  to  the  terms  of  the  Constitution! 
Both  would  thus  be  answered  just  as  effectually, 
and  in  the  same  manner,  as  they  are  in  this  clause. 


• 


366  MISCELLANEOUS  POWERS. 

§  400.  The  lexicographers  tell  you,  that  legis- 
lative power  is  an  authority  to  make  laws;  and 
your  dialectics  will  show  you,  that  certain  powers 
of  the  government,  or  purposes  of  the  Constitu- 
tion, cannot  be  properly  executed  without  making 
laws.  This  is  exactly  what,  and  no  more  or  less 
than,  this  clause  asserts.  It  neither  gives  any 
new  power,  nor  enlarges  any  old  one.  It  simply 
defines  the  legislative  power  as  granted  to  Con- 
gress by  the  Constitution  ;  which  would  have 
been  defined  in  the  same  manner,  and  almost  in 
the  same  words,  without  it,  —  "power  to  make 
all  laws  .  .  .  for  .  .  .  the  execution  of  alt  the 
powers  of  the  government." 

§  401.  It  is  an  exact  and  logical  definition 
or  description  of  the  legislative  power  of  Con- 
gress, as  conferred  by  the  Constitution;  and 
states  precisely  what  that  power  is,  and  would 
have  been,  and  would  have  been  known  to  be, 
if  this  clause  had  not  been  inserted.  It  is  valu- 
able and  useful,  because  it  is  a  plain  and  intel- 
ligible annunciation  of  important  truth.  It  can 
be  liable  to  no  reasonable  objection,  not  only 
because  it  is  truth,  but  because  it  adds  nothing, 
and  alters  nothing,  in  the  Constitution,  but  leaves 
it  just  what  it  would  have  been  otherwise.  "  If 
no  other  motive  for  its  insertion  can  be  sug- 
gested, a  sufficient  one  is  found  in  the  desire  to 
remove  all  doubts  respecting  the  right  to  legis- 
late on  that  vast  mass  of  incidental  powers 
which  must  be  involved  in  the  Constitution,  if 


MISCELLANEOUS  POWERS.  367 

that  instrument  be  not  a  splendid  bauble." 1 
rt  The  Constitution  of  the  United  States  has  not 
left  the  right  of  Congress  to  employ  the  neces- 
sary means  for  the  execution  of  the  powers  con- 
ferred on  the  government,  to  general  reasoning." 

1  Per  Marshall,  C.  J.,  for  the  Court,  in  McCulloch  v.  Maryland,  4 
Wheat.  R.,  420,  411. 


CHAPTER  XXIY. 

LEGISLATIVE  POWERS.  —  SPECIAL. 

§  402.  BESIDES  the  duties  specially  assigned 
to  Congress  in  the  different  sections  of  the  first 
Article,  others  are  so  assigned  in  the  subsequent 
Articles.  By  Article  II.,  "  Congress  may  deter- 
mine the  time  of  choosing  the  electors  "  of  Presi- 
dent and  Yice-President  in  the  States,  "  and  the 
day  on  which  they  shall  give  their  votes,"  in  their 
respective  States,  "  which  day  shall  be  the  same 
throughout  the  United  States."  They  "  may 
by  law  provide  for  the  case  of  removal,  death, 
resignation,  or  inability  both  of  the  President 
and  Yice-President,  declaring  what  officer  shall 
then  act  as  President;  and  such  officer  shall  act 
accordingly,  until  the  disability  be  removed,  or  a 
President  shall  be  elected."  But  the  office  shall 
first  devolve  on  the  Yice-President,  in  case  of 
such  vacancy  in  the  office  of  President. 

§  403.  The  duty  of  "  providing "  for  an  exi- 
gency necessarily  involves  the  duty  of  ascer- 
taining when  it  has  occurred.  Removal  can  be 
only  by  impeachment  and  conviction.  Resigna- 

[368] 


LEGISLATIVE  POWERS.  —  SPECIAL.  369 

tion  or  refusal,  Congress  have  decided,  can  be 
proved  only  by  writing,  duly  signed  and  deliv- 
ered. But  "inability,"  —  what  is  that?  If  it  is 
moral,  it  might  perhaps  be  ascertained  by  im- 
peachment and  conviction  before  the  Senate,  and 
become  removal  or  disqualification  by  judgment 
of  law.  If  it  is  physical  or  intellectual,  how  is  it 
to  be  dealt  with?  Is  absence  from  the  United 
States,  voluntary  or  involuntary,  a  moral  or  phys- 
ical inability  to  discharge  the  duties  of  the  office? 
A  similar  difficulty  might  arise  in  ascertaining 
when  the  disability  is  removed.  Congress  has 
not  yet  provided  for  these  exigencies  beyond  the 
accession  of  the  President  of  the  Senate,  and 
Speaker  of  the  House  of  Representatives  respec- 
tively, in  succession  after  the  Vice-President, 
and  then  a  new  election  of  President.1 

§  404.  By  the  2d  section  of  this  Article,  it 
would  appear,  that  although  the  executive  power 
is  vested  in  the  President,  and  he  is  bound  to 
"  take  care  that  the  laws  be  faithfully  executed," 
yet  he  can  appoint  no  officers  to  assist  him  in  this 
duty,  but  such  as  are  established  by  law;  nor 
then  even,  without  the  advice  and  consent  of  the 
Senate,  if  in  session,  except  in  case  of  "  such  in- 
ferior officers  "  as  Congress  may  authorize  to  be 
appointed  by  him  alone,  or  by  the  courts  of  law 
or  the  heads  of  departments.  Who  are  "such 
inferior  officers "  neither  the  Constitution  nor 
any  acts  of  the  government  has  yet  settled. 

1  Some  additional  provisions  have  more  recently  been  made. 
24 


370  LEGISLATIVE  POWERS.  —  SPECIAL. 

Doubtless  they  do  not  include  either  of  those  by 
whom  "  such  inferior  officers  "  may  be  appointed; 
but  it  would  be  difficult  to  establish  an  exclusion 
of  any  other  officers  whose  appointment  should 
be  authorized  in  that  manner  by  law. 

§  405.  By  Article  III.,  "  Congress  may,  from 
time  to  time,  ordain  and  establish  .  .  .  inferior 
courts ; "  and,  by  section  8  of  Article  I.,  they  have 
power  "to  constitute  tribunals  inferior  to  the 
Supreme  Court."  They  are  also  authorized  to 
regulate  the  appellate  jurisdiction  of  the  Supreme 
Court,  as  conferred  by  the  Constitution,  and  to 
make  "  exceptions  "  from  it;  which  "  exceptions," 
as  the  whole  "judicial  power  of  the  United 
States "  is  vested  in  the  Supreme  and  inferior 
courts,  must  inure  to  the  inferior  courts.  They 
have  also,  by  the  3d  section  of  Article  III., 
express  "power  to  declare  the  punishment  of 
treason,"  —  which  they  must  necessarily  have 
done  in  order  to  carry  "  into  execution  .  .  .  the 
powers  vested  in  the  government,"  if  this  special 
provision  had  not  been  made. 

§  406.  The  preceding  Articles  are  mainly  de- 
voted to  the  organization,  jurisdiction,  and  mode 
of  operation  of  the  three  departments  of  the 
government;  and  the  second  and  third,  being 
upon  the  executive  and  judicial  departments, 
include,  incidentally  only,  the  legislative  pow- 
ers above  specified.  The  subsequent  Articles 
provide  certain  rules,  regulations,  orders,  and 
precepts,  on  sundry  important  miscellaneous  sub- 


LEGISLATIVE  POWERS.  —  SPECIAL.  371 

jects ;  but  incidentally  either  delegate  particular 
legislative  powers  expressly,  or  develop  some 
general  powers  necessarily  devolved  or  elsewhere 
conferred  upon  Congress,  as  the  legislative  de- 
partment of  the  government.  The  first  section 
of  the  fourth  Article  is,  "  Full  faith  and  credit 
shall  be  given  in  each  State  to  the  public  acts, 
records,  and  judicial  proceedings  of  every  other 
State.  And  the  Congress  may,  by  general  laws, 
prescribe  the  manner  in  which  such  acts,  records, 
and  proceedings  shall  be  proved,  and  the  effect 
thereof." 

§  407.  The  "  faith  and  credit "  of  a  record  is  its 
efficacy  in  establishing  the  fact  which  it  asserts. 
The  "faith  and  credit"  of  the  "acts  and  pro- 
ceedings "  recorded,  is  their  force  and  effect  in 
relation  to  the  subject-matter  so  acted  upon. 
Evidence  is  either  prima  facie  only,  and  im- 
peachable  by  superior  evidence,  or  absolutely 
conclusive  and  unimpeachable.  "Full  faith  and 
credit "  is  that  for  which  it  was  made,  —  what  it 
has  by  law,  when  and  where  it  was  authorized  and 
required  to  be  made.  Such  a  degree  of  credit, 
the  "public  acts,  records,  and  judicial  proceed- 
ings" of  every  State  shall  have  in  every  other 
State,  by  constitutional  right,  independent  of  any 
legislation  on 'the  subject. 

§  408.  But  Congress  may  prescribe  the  man- 
ner of  proving  them,  "  and  the  effect  thereof." 
Under  this  authority,  Congress  have,  by  Act  of 
May  26,  1790,  prescribed  the  mode  of  authenti- 


372  LEGISLATIVE  POWERS.  —  SPECIAL. 

eating  the  legislative  Acts  of  a  State,  and  the 
form  of  attestation  for  judicial  records;  and  they 
provide  that  such  judicial  records  shall  have  the 
same  faith  and  credit,  "  in  every  court  within  the 
United  States,  as  they  have  in  the  courts  of 
the  State  from  whence  they  were  taken,"  but  say 
not  one  word  about  "the  effect  thereof."  The 
"  effect  thereof,"  like  its  "  faith  and  credit,"  may 
apply  to  it  as  evidence  of  the  fact  recorded,  or 
to  the  force  and  efficacy  of  the  fact  itself.  With- 
out saying  whether  it  alludes  to  one  or  the  other, 
or  both  of  these  respects,  the  Constitution  says 
it  shall  have  "full  faith  and  credit;"  and  the 
statute  reiterates  that  this  is  the  "  same  faith  and 
credit "  it  has  in  the  courts  of  the  State. 

§  409.  It  is  well  known,  that,  in  a  State  where 
a  judgment  at  law  is  rendered,  the  authorized 
record  of  that  judgment  has  "  faith  and  credit " 
beyond  the  simple  fact  that  such  a  judgment  was 
rendered.  The  judgment  itself  has  "faith  and 
credit "  as  a  legal  and  final  determination  of  the 
right  in  controversy,  unless  it  is  open  to  further 
proceedings  under  the  law  by  which  it  wras 
authorized.  To  this  extent,  "  faith  and  credit "  is 
the  "  effect  thereof,"  and  "  credit "  and  "  effect " 
are  identical.1  But  if  these  terms  are  identical, 
then  "full  faith  and  credit"  must  include  all 
"the  effect"  it  has  where  it  was  made;  and  this 
by  constitutional  right.  If,  notwithstanding  all 

1  Mills  v.  Duryee,  7  Cr.  Eep.,  481;  and  Hampton  v.  McConnel,  3 
Wheat.  K.,  234. 


LEGISLATIVE  POWERS.  —  SPECIAL.  373 

this,  Congress  are  absolutely  authorized  to  w  pre- 
scribe "  w  the  effect  thereof,"  then  they  may  en- 
large or  diminish  "  the  effect "  so  held  to  be 
included  in  its  "faith  and  credit."  At  present 
the  legislative  provision  does  not  reach  it,  in 
reference  either  to  "  public  acts,  records,  or  ju- 
dicial proceedings." 

§  410.  By  Article  IV.,  section  3,  "  new  States 
may  be  admitted  by  the  Congress  into  this 
Union."  This  power  has  received  a  construction 
in  practice  as  broad  and  unlimited  as  its  terms. 
Its  only  restrictions  relate  to  pre-existing  States, 
and  will  be  reverted  to  under  that  head.  New 
States  have  been  created  and  admitted  from  ter- 
ritory originally  included  within  the  treaty  limits 
of  the  country;  from  territory  acquired  since  the 
adoption  of  the  Constitution,  by  purchase,  con- 
quest, and  treaty,  from  foreign  nations;  and,  in 
one  instance,  by  incorporating  a  foreign  State 
entire, — government,  laws,  and  people, — directly 
into  the  Union,  as  a  component  part  of  the  na- 
tion, conferring  citizenship  alike  on  all  its  inhab- 
itants, whether  aliens,  Indians,  or  slaves,  and 
without  distinction  of  race  or  color.  With  this 
practical  construction  of  the  Constitution,  adopt- 
ed and  carried  out  by  that  school  of  our  politi- 
cians habitually  clinging  to  the  *most  narrow 
construction  of  the  powers  of  the  government, 
it  is  difficult  to  see  what  territory  or  country  or 
people  may  not  be  admitted,  or  for  what  ade- 
quate reason  any  can  be  excluded. 


374  LEGISLATIVE  POWERS.  —  SPECIAL. 

§  411.  After  seeing  the  power  of  admitting 
new  States  thus  broadly  asserted  and  practised, 
we  may  consider  whether  by  any  and  what 
means  States  thus  admitted  may  get  out  of  the 
Union.  By  being  so  admitted,  a  State  becomes, 
if  it  was  not  before,  a  component  part  of  the 
nation;  and  as  this  nation,  no  more  than  any 
other,  ever  made  provision  for  its  own  dissolu- 
tion, it  is  obvious  that  whatever  of  this  nature 
is  done,  must  be  by  wrong  and  not  by  right, 
— by  force,  and  not  by  law.  The  Constitution 
guarantees  them  political  existence  as  States, 
with  republican  governments  ;  and  duties,  in- 
volving rights  and  powers,  under  the  govern- 
ment. The  question  now  is  if  this  corporate 
existence  as  States  may  be  extinguished,  these 
republican  governments  cast  off,  and  these  duties 
and  rights  cancelled?  If  so,  when  and  how? 
The  constitutional  guarantee,  in  the  case  of  cor- 
porations, is  just  as  broad  as  in  the  case  of  indi- 
viduals, and  in  neither  case  does  it  imply  any 
license  to  violate  the  laws,  or  the  rights  of 
others;  nor  any  exemption  from  the  appropriate 
penalties,  if  they  do  either. 

§  412.  That  bodies  politic,  though  legally  in- 
capable of  acting  outside  of  their  charters,  do  in 
fact,  as  well  as  individuals,  really  offend  in  both 
respects,  and  are  held  responsible  in  their  cor- 
porate capacity  therefor,  is  proved  by  every  day's 
proceedings  in  courts  of  justice.  All  constitu- 
tional rights  exist  under  the  Union,  and  as  such 


LEGISLATIVE  POWERS.  — SPECIAL.  375 

can  have  no  existence  outside  of  the  nation,  or 
independent  of  it.  Natural  persons  have  natural 
rights,  independent  of  the  government;  but  ar- 
tificial persons,  having  only  artificial  existence, 
cease,  and  their  rights  likewise,  with  the  art  that 
produced  them.  It  results  from  this,  that,  if  the 
nation  itself  is  destroyed,  the  Constitution  abol- 
ished, and  the  government  extinct,  the  States 
and  all  th.eir  guarantees  and  rights,  and  every 
thing  else  held  under,  or  by  virtue  of,  the  Consti- 
tution, would  cease  with  it.  This  is  one  way  that 
States  may  get  out  of  the  Union,  —  by  the  de- 
struction of  the  Union  itself.  This  way  several 
of  the  States  have  lately  tried  without  success. 

§  413.  Another  way  is,  by  their  own  destruc- 
tion. So  far  as  respects  actual  physical  de- 
struction, in  both  cases  there  is  no  difficulty  in 
understanding  it.  If  the  territory  is  sunk,  and 
the  government  and  people  annihilated  with  it, 
it  is  clear  there  is  no  State  left:  being  out  of 
existence,  it  is,  of  course,  out  of  the  Union. 
But  how  is  a  State  destroyed  politically?  If  it 
is  subdued,  conquered,  taken  possession  of,  and 
governed  by  a  foreign  nation,  it  has  lost  its  politi- 
cal existence  as  a  State:  it  has  become  incor- 
porated with  a  foreign  State,  and  of  course  is 
not  itself  a  State  within  the  Union,  or  anywhere 
else;  unless,  indeed,  the  foreign  State  should  do 
with  it  as  we  do,  —  call  it  a  State,  when  it  is  in 
fact  only  an  integral  part  of  one. 

§  414.  Again,  if  it  becomes  itself  a  foreign 


376  LEGISLATIVE  POWERS.  — SPECIAL. 

State,  by  declaring  and  maintaining  its  indepen- 
dence and  sovereignty  as  a  separate  State,  it 
thereby  loses  its  political  existence  and  rights,  as 
a  component  part  of  the  Union,  which  consti- 
tuted its  only  claim  to  be  a  State  within  the 
Union.  If  indeed  it  fails,  by  force,  to  maintain 
its  declaration,  the  result  is  still  the  same.  By 
making  war,  it  has  abdicated  and  repudiated  all 
its  rights  and  duties  as  a  State  in  the  Union, 
and  it  is  not  at  its  option  to  resume  them  at  its 
own  pleasure.  Burlemaqui  says  war  and  abdi- 
cation are  the  means  of  losing  sovereignty.  If 
by  them  absolute  sovereignty  may  be  lost,  cer- 
tainly any  minor  power  short  of  that  may  be  lost 
also  by  the  same  means.  In  the  case  of  the 
rebel  States,  by  becoming  public  enemies,  their 
rights  of  every  kind,  under  the  government,  have 
been  lost  by  both.  If  they  get  them  again,  it 
must  be  by  some  process  in  conformity  to  the 
Constitution;  and  it  will  hardly  be  done  without 
reason  to  believe  that  they  will  be  used  accord- 
ing to  the  Constitution. 

§  415.  The  corporate  rights  —  the  State  rights 
—  the  political  rights,  under  the  Constitution,  of 
an  aggregate  membership  of  the  nation,  having 
been  all  lost  and  thrown  away,  by  solemn  abjura- 
tion and  war,  would  not  be  likely  to  be  revived 
or  restored  to  the  same  organization,  even  if  the 
government  could  be  assured  of  their  accept- 
ance, which  they  cannot  be;  because  the  party, 
having  no  corporate  existence,  has  no  power  to 


LEGISLATIVE  POWERS.  —  SPECIAL.  377 

speak  or  act,  as  an  aggregate  body,  on  that  sub- 
ject, or  any  other.  It  has  become  absolutely 
necessary  to  begin  anew.  The  territory  and  the 
population  belong  to  the  government,  and  will 
not  be  given  up.  They  still  form  a  component 
part  of  the  nation.  The  local  government,  the 
State,  the  corporation,  having  abdicated  and  lost 
its  political  existence  (and  it  would  have  lost  it 
by  the  same  means,  if  it  had  been  a  State  under 
the  law  of  nations),  will  necessarily  be  resumed 
by  the  government,  and  provided  for  in  such 
form  as  the  Constitution  may  be  found  to  war- 
rant. Those  wicked  husbandmen  will  be  de- 
stroyed, and  the  vineyard  given  to  others. 

§  416.  Nor  will  the  government  be  under  ob- 
ligation to  give  it  to  any  body  in  the  form  and 
shape  it  was  in  before.  It  was  originally  a  part 
of  the  national  domain,  and  it  is  still  theirs  by 
the  original  right,  as  well  as  by  the  additional 
right  of  war.  Its  political  rights  are  cancelled, 
and  no  body  can  claim  them.  ]N"ew  States  may 
be  formed  in  such  manner,  with  such  boundaries, 
such  republican  governments,  and  such  other 
political  rights,  as  the  Constitution  authorizes. 
But  the  first  requisite  to  any  reconstruction,  as 
it  should  be  to,  any  original  construction,  is  a 
loyal  population  of  sufficient  physical,  moral,  and 
intellectual  power  to  be  adequate  to  the  support 
and  maintenance  of  the  government  of  a  State 
in  the  Union,  according  to  the  principles  of  the 
Constitution.  Without  this  no  new  State  ever 


378  LEGISLATIVE  POWERS.  —  SPECIAL. 

ought  to  have  been  admitted,  and  no  old  State 
ought,  in  any  form,  to  be  resuscitated. 

§  417.  A  corporation  may  be  dissolved  by 
surrender  of  its  franchises,  or  by  mis-user  or  non- 
user  of  them.  In  the  first  case,  the  surrender 
should  be  accepted  by  the  government;  and,  in 
the  other,  the  matter  should  be  inquired  into  by 
process  of  quo  warranto,  and  the  forfeiture  judi- 
cially declared.  Besides  these  methods  of  dis- 
solution, there  is  obviously  another,  requiring 
no  formality  on  the  part  of  the  government, 
and  leaving  them  no  option  in  regard  to  their 
action.  If  the  corporation  absolutely  reject 
their  franchise,  abjure  all  its  rights  and  duties, 
repudiate  its  privileges  and  immunities,  and 
superadd  actual  war  upon  the  nation,  the  gov- 
ernment has  no  course  left  but  to  conform  itself 
to  the  facts,  and  carry  on  its  own  operations  as 
though  the  franchise  had  never  been  conferred. 

§  418.  The  civil  divisions  of  the  United  States, 
contemplated  in  the  Constitution,  are  called 
States,  territories,  governmental  district,  and 
forts,  magazines,  arsenals,  dockyards,  &c.  These 
last  probably  could  not  be  formed  into  States,  on 
account  of  the  unsuitableness  of  the  materials 
and  their  location  within  other  States,  and  still 
more  because  a  State  government  would  be 
inconsistent  with  the  "  exclusive  legislation " 
delegated  to  Congress;  the  government  district 
could  not,  because  a  State  government  would 
not  only  be  inconsistent  with  the  "  exclusive 


LEGISLATIVE  POWERS.  —  SPECIAL.  379 

legislation  "  of  Congress,  but  incompatible  with 
the  purpose  of  the  Constitution  in  authorizing 
the  cession.  The  United  States  had  territories 
before  the  Constitution  was  made,  and  were  un- 
der engagements  with  the  inhabitants  to  form 
them  into  States  and  admit  fhem  to  the  Union. 
The  fourth  and  sixth  Articles  of  the  Constitu- 
tion enabled  the  government  to  fulfil  those  en- 
gagements, and  to  govern  those  and  any  future 
territories  in  the  mean  time. 

§  419.  At  the  present  moment,  about  one  half 
of  the  whole  national  domain  is  subject  to  these 
territorial  governments,  which  differ  very  little 
in  form  from  the  State  governments,  and  might 
easily  be  made  to  differ  less,  or  not  at  all.  Still 
their  inhabitants,  though  citizens  of  the  United 
States,  and  entitled  to  all  the  rights  and  privi- 
leges of  such,  even  if  they  amounted  to  a  ma- 
jority of  the  whole  population  of  the  country, 
could  not  exercise  their  portion  of  the  national 
sovereignty.  Nothing  but  a  formal  admission  as 
a  State,  or  an  equally  formal  abolition  of  the 
difference  between  a  State  and  a  territory,  which 
would  amount  to  the  same  thing,  could  entitle 
the  citizens  inhabiting  a  territory  to  participate 
in  the  administration  of  the  general  government, 
by  their  suffrages  for  -President,  Senators,  or 
Representatives,  by  whom  the  whole  machinery 
is  moved. 

§  420.  Though  the  Constitution  contemplates 
and  authorizes  these  divisions,  which  have  since 


380  LEGISLATIVE  POWERS.  — SPECIAL. 

been  made  and  organized,  yet,  at  the  time  of  its 
adoption,  the  only  civil  divisions  of  the  country 
actually  organized  and  recognized  were  called 
States.  Under  the  British  government,  and 
afterwards  under  the  Revolutionary  government, 
till  the  Declaration  of  Independence  in  1776, 
they  were  called  colonies.  Under  the  laws  of 
the  United  States,  they  are,  for  some  purposes, 
called  districts.  But  in  neither  case,  since  the 
formation  of  the  American  Union  in  1774,  has 
the  name  of  the  subordinate  divisions  had  any 
tendency  to  indicate  their  actual  political  posi- 
tion within  the  'Union.  For  this  purpose  they 
might  at  any  time,  and  might  still,  as  well  be 
called  colonies,  districts,  departments,  or  terri- 
tories, as  States.  Their  political  status  is  decided 
by  the  Constitution,  not  by  the  name. 

§  421.  A  State,  by  the  law  of  nations,  and  in 
the  family  of  nations,  is  "  a  sovereign  political 
society,  occupying  an  extended  territory,  and 
forming  an  organic,  independent,  and  legal 
whole."  A  State,  by  that  law  and  in  that  con- 
nection, is  a  nation,  and  the  equal  of  any  other 
nation  in  sovereignty,  independence,  and  indi- 
viduality. But  "  a  State  within  this  Union,"  and 
under  our  Constitution,  is  a  very  different  thing. 
Instead  of  being  a  nation,  it  is  only  a  component 
part  of  a  nation,  —  and  at  the  present  time  only 
a  small  part,  —  one  thirty-seventh  of  the  whole. 
It  is  a  political  society,  to  be  sure,  —  that  is,  a 
corporation,  a  body  politic;  and,  like  other  local 


LEGISLATIVE  POWERS.  —  SPECIAL.  381 

corporations  for  the  purposes  of  government, 
occupies  more  or  less  territory,  and  is  legally 
organized  as  an  integral  whole.  So  are  counties, 
cities,  and  towns;  which  are  distinguished  from 
States,  less  by  the  extent  of  their  territory  and 
population  than  by  the  magnitude  and  perma- 
nence of  their  rights  and  privileges,  and  the 
nature  of  their  organizations  under  the  govern- 
ment. Some  counties  are  larger  than  some 
States,  and  some  cities  have  more  population 
than  several  States. 

§  422.  But  the  powers  and  privileges  of  a 
State,  with  a  guaranteed  republican  government, 
depend  on  the  Constitution  of  the  United  States ; 
and  their  character  and  extent  must  be  decided 
under  its  authority.  Neither  nationality,  sove- 
reignty, nor  independence  can  constitute  any 
part  of  them;  because  they  must  be  adjudicated, 
in  the  last  resort,  by  the  tribunals  of  the  nation. 
"No  power  can  be  national,  sovereign,  or  inde- 
pendent which  depends  on  an  extrinsic  power  for 
the  vindication  of  its  right.  Every  State  officer 
is  sworn  to  obey  the  Constitution  of  the  United 
States ;  and  every  case  arising  under  the  Consti- 
tution may  be  decided,  in  the  last  resort,  by  its 
courts. 

§  423.  These  civil  divisions  being  the  princi- 
pal, if  not  the  only  ones  organized  and  in  uni- 
versal use  at  the  time,  were  authorized  and 
employed  in  the  administration  of  the  general 
government.  Their  number  may  be  increased, 


382  LEGISLATIVE  POWERS.  — SPECIAL. 

\ 

and  has  been  ;  and  probably,  within  certain 
limits,  their  organization  and  name  might  be 
changed:  but,  substantially,  the  citizens  of  the 
States  must,  by  the  Constitution,  exercise  their 
portion  of  the  national  sovereignty,  by  suffrage, 
in  the  State,  or  that  section  of  the  nation  occu- 
pying the  position  and  character  of  a  State, 
where  they  reside;  and  nawhere  else.  If  they 
do  not  reside  in  such  a  portion  of  the  United 
States,  they  can  have  no  vote  in  the  election  of 
those  officers  by  whom  the  national  government 
is  administered. 

§  424.  The  last  clause  of.  the  3d  section,  Ar- 
ticle IV.,  is,  w  The  Congress  shall  have  power  to 
dispose  of,  and  make  all  needful  rules  and  regu- 
lations respecting,  the  territory  or  other  property 
belonging  to  the  United  States;  and  nothing  in 
this  Constitution  shall  be  so  construed  as  to 
prejudice  any  claims  of  the  United  States  or  of 
any  particular  State."  The  succession  of  the 
new  government  to  all  the  rights  of  property 
of  the  United  States  under  the  old  govern- 
ment, is  here  distinctly  recognized,  as  the  suc- 
cession to  all  their  duties  and  obligations  is 
recognized  in  the  sixth  Article.  A  change  of 
government  makes  no  alteration  in  any  of  these 
rights  or  duties,  or  in  the  laws  by  which  they  are 
to  be  understood  and  sustained. 

§  425.  At  the  adoption  of  the  Constitution, 
the  United  States  had  territory  and  other  prop- 
erty, both  in  possession  and  in  action ;  and  this 


LEGISLATIVE  POWERS.  —  SPECIAL. 


clause  recognizes  both,  and  saves  the  adverse 
claims  in  the  same  position  they  were  before. 
The  express  power  here  given  to  Congress  "to 
dispose  of  ...  the  territory  .  .  .  and  other  prop- 
erty belonging  to  the  United  States,"  is  a  neces- 
sary incident  of  the  right  of  property,  and  with 
that  right  itself  would  have  resulted  to  the  gov- 
ernment, and  to  this  department  of  the  govern- 
ment, if  the  clause  had  been  wholly  omitted.  The 
additional  power  expressly  given  to  Congress,  "to 
make  all  needful  rules  and  regulations  respecting 
the  territory  and  other  property  of  the  United 
States,"  has  been  the  occasion  of  some  discussion 
and  some  difference  of  opinion.  It  is  not  under- 
stood, that  the  requisite  power  to  manage  and 
appropriate  the  subject,  as  property,  has  been 
denied  to  be  fully  included  under  this  grant,  if 
any  such  grant  can  be  held  to  be  necessary  or 
useful. 

§  426.  But  a  much  more  extended  power,  for 
the  purposes  of  civil  and  political  government, 
has  been  claimed  by  some  as  embraced  in  this 
grant.  Perhaps  the  terms  are  broad  enough  to 
warrant  such  a  construction,  if  there  was  any 
adequate  reason  for  adopting  it,  or  any  imagin- 
able purpose  to  be  answered  by  supposing  them 
ever  to  have  been  used  with  such  an  intent. 
With  or  without  this  construction,  the  whole 
clause  is  sensible,  correct,  and  just,  in  all  its  pro- 
visions and  arrangements;  and  yet  it  is  difficult 
to  see  in  what  one  particular  the  matters  therein 


384  LEGISLATIVE  POWERS.  —  SPECIAL. 

contained,  or  any  of  them,  are  placed  in  any 
different  relations  to  each  other,  or  to  any  thing 
else,  than  they  would  have  occupied  if  no  such 
clause  had  been  in  the  Constitution. 

§  427.  As  to  civil  government,  the  territory 
mentioned  in  the  clause,  which  was  the  only  one 
then  belonging  to  the  United  States,  and  which 
now  constitutes  five  States  in  the  Union,  was  a 
part  of  the  United  States  before  it  became  tech- 
nically a  territory,  and  certainly  was  not  less  so 
afterwards.  The  Constitution  announces  itself 
as  ordained  and  established  "  for  the  United 
States,"  the  whole  country  and  every  part  of  it; 
and  that  not  merely  as  it  was  then,  but  as  it  might 
legally  become  at  any  time  afterwards.  It  has 
been  held  to  authorize  accessions  in  divers  ways ; 
and  they  have  actually  been  made,  by  the  right 
of  war,  by  purchase,  treaty,  and  simple  legisla- 
tion. In  all  these  cases,  the  additions  are  as 
much  a  part  of  the  United  States  as  the  original 
territory,  which  made  the  first  assumption  and 
declaration  of  nationality.1 

§  428.  If  the  government  under  the  Constitu- 
tion is  the  "  firm  national  government "  which  the 
people  demanded,  adequate  to  the  w  preservation 
of  the  Union  "  and  all  the  "  exigencies  of  gov- 
ernment, —  competent  to  govern  the  whole  coun- 
try, —  it  is  of  course  competent  to  govern  every 
part  of  it;  and  most  especially  is  it  incumbent 
on  it  to  govern  that  portion  of  the  nation  for 

1  Loughborough  v.  Blake,  6  Wheat.  Eep. 


LEGISLATIVE  POWERS.  —  SPECIAL.  385 

which  the  Constitution  has  recognized  no  subor- 
dinate or  ancillary  State  government  for  minor 
occasions,  but  left  entirely  dependent  on  the  ex- 
clusive legislation  of  Congress.  The  govern- 
ment derives  its  existence,  and  all  its  rights, 
duties,  and  powers,  from  the  Constitution;  and, 
wherever  these  are  exercised,  they  are  in  subor- 
dination to  its  principles  and  bound  by  its  re- 
strictions. They  have  the  same  supreme  power 
over  every  portion  of  the  country,  and  can  exer- 
cise no  other.  Whatever  rules  individual  dis- 
cretion or  local  institutions  adequately  supply, 
the  supreme  government  is  not  called  on  to 
provide.  But,  where  these  are  wanting,  the 
supreme  government  is  the  only  resort. 

§  429.  This  constitutes  the  difference  between 
the  action  of  the  government  over  the  States, 
and  those  other  portions  of  the  country  where, 
in  default  of  State  governments,  the  general  gov- 
ernment is  necessarily  exclusive,  though  no  more 
supreme.  The  Constitution  expressly  transfers 
the  property  and  the  engagements  of  the  United 
States  to  the  new  government;  and  it  was  com- 
plained of  by  its  opponents,  for  the  want  of  an 
express  provision  securing  the  enjoyment  of  the 
common  law.1  But  was  it  not  a  work  of  superer- 
ogation to  do  either?  The  United  States,  pre- 
vious to  the  adoption  of  the  Constitution,  had  few 
general  statutes,  except  those  which  grew  out  of 
the  exigencies  of  the  war,  and  expired  with  it. 

*  See  2  American  Museum,  434;  1  Story's  Com.,  275,  and  3  do.,  506. 

25 


386  LEGISLATIVE  POWERS.  —  SPECIAL. 

There  were  a  few,  however,  that  never  were  re- 
pealed, or  otherwise  abrogated  or  altered,  either 
by  the  changes  of  the  government  or  by  any 
action  of  the  government  itself. 

§  430.  During  the  early  Administrations  of 
the  present  government,  the  Acts,  Resolves,  or 
Ordinances  of  the  Revolutionary  and  Confedera- 
tion Congress  are  often  alluded  to,  and  brought 
into  discussion  in  Congress,  as  laws  still  in  force. 
In  some  instances,  they  are  repealed  or  super- 
seded. In  others  they  are  suspended  or  dis- 
pensed with  in  particular  cases.  In  more  they 
are  enforced  or  adhered  to,  as  the  existing  rule 
of  decision,  or  law  of  the  case,  binding  on  the 
parties.  These  questions  often,  perhaps  gene- 
rally, arose  out  of  the  statutes  of  limitation,  ter- 
minating, by  lapse  of  time,  certain  claims  against 
the  government.  But  they  all  assume  the  force 
and  validity  of  the  statutes,  as  governing  the 
case  in  hand;  and  thus  recognize  the  continu- 
ance and  identity  of  the  State,  in  relation  to  its 
laws  as  well  as  to  its  rights  and  duties.1  By  an 
Act  passed  Aug.  5,  1789,  it  is  enacted,  "That 
the  President  of  the  United  States  be,  and  he 
hereby  is,  empowered  to  nominate,  and  by  and 
with  the  advice  and  consent  of  the  Senate  to 
appoint,  such  person  or  persons  as  he  may  think 
proper,  for  supplying  any  vacancy  that  now  is,  or 
may  hereafter  take  place,  in  the  Board  of  Com- 

1  See  the  early  volumes  of  the  Annals  of  Congress,  and  Benton's 
Abridgment  of  Debates,  passim. 


LEGISLATIVE  POWERS.  —  SPECIAL.      •        387 

missioners  established  by  an  Ordinance  of  the 
late  Congress,  of  the  7th  of  May,  1787." l 

§  431.  The  Constitution  neither  cancels  the 
rights,  discharges  the  duties,  nor  repeals  the  laws 
of  the  United  States,  as  they  existed  when  it  was 
adopted,  any  further  than  such-  rights,  duties,  or 
laws  are  inconsistent  or  incompatible  with  its 
own  provisions.  Among  these  laws,  the  Decla- 
ration of  Independence  and  the  Ordinance  of 
1787  have  already  been  mentioned.  The  Decla- 
ration of  Rights,  by  the  first  Congress,  Oct.  14, 
1774,  is  scarcely  less  important.  It  asserts, 
among  other  things,  the  right  of  all  "the  inhabi- 
tants of  the  English  colonies  in  North  America  " 
.  .  .  " to  the  common  law  of  England;"  and 
"that  the  foundation  of  ...  liberty,  and  of  all 
free  government,  is  a  right  in  the  people  to  par- 
ticipate in  their  legislative  council."  This,  too, 
has  never  been  repealed  or  become  obsolete. 
The  right  of  the  people  to  choose  Representa- 
tives to  the  national  and  State  legislatures  is 
actually  embodied  in  the  Constitution ;  and  it 
not  only  contains  nothing  tending  to  abrogate 
the  common  law,  but,  in  more  than  one  instance, 
directly  refers  to  it  as  an  existing  code,  valid  and 
authoritative,  at  least  for  some  purposes. 

§  432.  Several  of  the  constitutional  provisions 
would  be  wholly  unmeaning  without  it ;  and 
others  must  be  construed  by  it,  and  cannot  be 

1  See  the  Act  at  large  in  vol.  ii.  of  the  "  Laws  of  the  United  States," 
edition  of  1815,  p.  32 ;  and  Ordinance  in  the  first  volume,  chap.  40. 


388  LEGISLATIVE  POWERS.  — SPECIAL. 

understood  independent  of  it.  The  distinction 
between  w  cases  in  law  and  equity,"  which  the 
constitution  recognizes  (Article  III.,  section  2), 
relates  directly  to  the  difference  between  the 
principles  of  the  two  codes  of  common  law  and 
equity,  by  which  actions  in  judicial  tribunals  are 
classified  and  decided.1  The  seventh  Amend- 
ment secures  the  right  of  a  trial  by  jury  "in 
suits  at  common  law,"  and  prohibits  their  re-ex- 
amination otherwise  "  than  according  to  the  rules 
of  the  common  law."  Is  it  nevertheless  true  that 
we  have  no  common  law  ?  What  is  the  writ  of 
habeas  corpus?2  Its  substance, — its  form?  To 
what  does  it  apply?  What  is  its  object?  Whose 
is  the  privilege  of  it?  What  right  does  it  restore ; 
what  wrong  does  it  redress?  Who  is  entitled 
to  the  right,  and  by  what  law?  and  how  does 
the  writ  restore  it?  The  answer  to  these  ques- 
tions is  from  the  common  law,  and  they  cannot 
be  answered  without  it.  If  there  is  no  common 
law,  this  clause  of  the  Constitution  is  inexplica- 
ble, —  it,  in  fact,  means  nothing. 

§  433.  If  a  change  of  government  neither 
changes  the  laws,  nor  the  rights  and  duties 
under  the  laws,  how  is  it  that  the  people  of  the 
United  States  have  lost  their  right  to  the  law, 
which  their  fathers  brought  with  them  to  this 
land,  which  they  used  and  approved,  and  trans- 
mitted to  their  children  j  which  their  children 
and  their  successors  claimed  as  their  birthright, 

1  3  Story's  Com.,  506.  2  Article  I.,  section  9. 


LEGISLATIVE  POWERS.  —  SPECIAL.  389 

and  practised,  under  all  the  forms  and  changes 
of  government  through  which  they  have  passed; 
and  which  the  present  generation  continue  to  use 
and  practise,  almost  to  the  exclusion  of  every 
other?  Yet  it  is  vexata  questio  how  far  the  com- 
mon law,  as  used  and  approved  in  this  country 
before  the  Revolution,  through  the  Revolution, 
before  the  Constitution,  and  since  the  Constitu- 
tion, may  still  be  administered  by  the  courts  of 
the  United  States  as  a  part  of  the  law  of  the 
land.1 

1  Robinson  v.  Campbell,  3  Wheat.,  223 ;  Cox  and  Dick  v.  United  States, 
6  Peters'  R.,  203. 


CHAPTER   XXY. 

LEGISLATIVE  PO WEES.  —  SPECIAL. 
Amendments. 

§  434.  THE  fifth  Article,  on  the  mode  of  amend- 
ing the  Constitution,  is  the  last  one  that  expressly 
confers  special  and  specific  powers  on  Congress 
for  any  purpose  whatever.  It  is  as  follows :  "  The 
Congress,  whenever  two-thirds  of  both  Houses 
shall  deem  it  necessary,  shall  propose  amendments 
to  this  Constitution;  or,  on  the  application  of  the 
legislatures  of  two-thirds  of  the  several  States, 
shall  call  a  convention  for  proposing  amend- 
ments, which  in  either  case  shall  be  valid,  to  all 
intents  and  purposes,  as  part  of  this  Constitu- 
tion, when  ratified  by  the  legislatures  of  three- 
fourths  of  the  several  States,  or  by  conventions 
in  three-fourths  thereof,  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  the 
Congress ;  provided  that  no  amendment  which 
may  be  made  prior  to  the  year  one  thousand 
eight  hundred  and  eight,  shall  in  any  manner 
affect  the  first  and  fourth  clauses  in  the  ninth 
section  of  the  first  Article;  and  that  no  State, 

[3901 


LEGISLATIVE  POWERS.  —  SPECIAL.  391 

without  its  consent,  shall  be  deprived  of  its  equal 
suffrage  in  the  Senate." 

§  435.  Here  are  three  distinct  powers  con- 
ferred on  Congress,  and  neither  of  them  proba- 
bly involved  in  the  legislative  portion  of  any  of 
the  general  powers  of  the  government.  By  the 
first,  they  may,  by  a  two-thirds  vote,  themselves 
propose  amendments  to  the  Constitution.  This 
lias  been  held  to  be  independent  of  the  veto 
power  of  the  President.  A  two-thirds  vote  in 
each  House  is  all  that  would  be  required  if  the 
veto  was  interposed,  and  this  is  required  without 
it.  By  the  second,  they  may,  on  the  application 
of  the  legislatures  of  two- thirds  of  the  States, 
call  a  convention  for  proposing  amendments. 
This  power  has  never  been  used;  and,  of  course, 
it  has  never  been  decided  practically  whether 
the  "call"  shall  be  presented  to  the  President 
for  his  approval  .or  not.  The  convention  must 
probably  be  a  convention  of  the  people  of  the 
United  States,  by  delegates  chosen  or  appointed 
in  each  State:  but  in  what  proportion;  when, 
how,  and  by  whom  chosen  or  appointed;  where 
and  when  assembled;  and  how  organized,  gov- 
erned, and  restricted,  —  with  other  necessary 
preliminaries,  must  be  settled  by  the  power 
authorized  to  make  the  "  call,"  for  there  is  no 
other.  By  the  third,  Congress  is  authorized  to 
prescribe  the  mode  of  ratification  of  the  amend- 
ments proposed  either  by  themselves  or  the  con- 
vention by  them  called. 


392  iiEGISLATTVE  POWERS.  —  SPECIAL. 

§  436.  This  may  be  done  by  the  legislatures  of 
the  several  States,  or  by  State  conventions  elected 
and  held  by  virtue  of  the  requisition  of  Con- 
gress, and  in  the  manner  by  them  directed.  The 
wisdom,  the  utility,  and  even  the  necessity,  of 
pro  visions  for  amending  the  jOonstitution  have 
never  been  denied  or  doubted.  But  the  second 
of  those  mentioned  in  this  Article  has  never 
been  tried,  and  it  may  be  long  before  it  is  so. 
A  simultaneous  movement,  by  twenty-five  or 
more  diiferent  State  legislatures,  each  composed 
of  at  least  two  distinct  and  independent  bodies 
of  men,  in  favor  of  a  general  convention  of  the 
people  for  proposing  alterations  of  the  funda- 
mental law,  without  limit  and  without  landmark, 
is  a  measure  not  likely  to  be  resorted  to  for 
any  other  purpose  than  to  destroy  the  govern- 
ment. Whenever  so  large  a  proportion  of  the 
American  people  become  imbued  with  that  pur- 
pose, it  is  safe  to  predict  that  they  will  march  to 
their  object  by  a  more  direct  route  than  by  pro- 
curing an  amendment  of  the  Constitution  in  this 
circuitous  manner. 

§  437.  The  other  method  has  been  resorted  to 
several  times,  at  different  periods  of  our  history. 
The  first  time  was  at  the  first  session  of  the  first 
Congress.  They  proposed  an  addition  of  twelve 
Articles,  in  the  nature  of  a  bill  of  rights,  most 
of  them  copied  or  modified  from  English  or 
American  models,  for  the  purpose  of  conciliating 
a  large  class  of  citizens,  who  had  been  more  or 


LEGISLATIVE  POWERS.  —  SPECIAL.  393 

less  dissatisfied  with  the  Constitution  on  account 
of  its  destitution  of  such  a  department.  '  The 
deficiency  had  been  most  ably  and  elaborately 
defended  by  the  friends  of  the  Constitution,  in 
the  spoken  and  written  debates  on  the  subject, 
by  reasoning  which  Judge  Story  pronounces 
had  "  much  intrinsic  force,"  though  not  "  conclu- 
sive or  satisfactory." 1  He  adds  in  a  note,  "  It  had 
.  .  .  extraordinary  influence  on  the  Convention; 
for,  upon  a  motion  being  made  to  appoint  a  com- 
mittee to  prepare  a  bill  of  rights,  the  proposition 
was  UNANIMOUSLY  rejected.  —  Journal,  369." 

§  438.  But  this  view  is  altogether  illusory. 
The  vote  was  taken  on  the  12th  day  of  Septem- 
ber, the  last  of  the  many  times  the  subject  came 
before  the  Convention,  and  just  three  days  before 
the  finished  Constitution  went  into  the  hands  of 
the  engrossers.  In  his  history  of  the  Debates, 
Mr.  Madison  says  the  vote  stood:  New  Hamp- 
shire, Connecticut,  New  Jersey,  Pennsylvania, 
and  Delaware,  AY;  Maryland,  Virginia,  North 
Carolina,  South  Carolina,  and  Georgia,  NO, — 
five  Northern  against  the  five  Southern  States, 
Massachusetts  being  absent.2  The  question  was 
thus  lost.  As  the  South  would  not  consent  to  a 
bill  of  rights,  the  North,  as  is  not  unusual  on 
such  occasions,  made  a  virtue  of  necessity,  and 
permitted  the  official  record  to  be  made  as  it 
stands.  But  a  bill  of  rights  was  excluded  by 
slavery,  and  slavery  alone. 

1  3  Com.,  716.  2  3  Madison  Papers  in  foe. 


394  LEGISLATIVE  POWERS.  —  SPECIAL. 

§  439.  This  was  afterwards  distinctly  avowed 
to  the  South  Carolinians  by  General  Charles 
Cotesworth  Pinckney.  He  said,  "  Such  bills 
generally  begin  with  declaring  that  all  men  are 
by  nature  born  free.  Now,  we  should  make  that 
declaration  with  a  very  bad  grace  when  a  large 
part  of  our  property  consists  in  men  who  are 
actually  born  slaves."1  Amid  all  the  sophistry 
that  was  wasted  to  reconcile  the  people  of  the 
North  to  the  omission  of  a  bill  of  rights,  and  to 
obliterate  the  fact  that  it  was  through  the  influ- 
ence of  slavery,  here  is  a  plain  and  honest  state- 
ment of  the  exact  truth;  and  it  is  the  only 
instance  where  the  truth  on  this  subject  was 
boldly  and  explicitly  stated,  responsibly  vouched, 
and  placed  on  record,  so  that  to  this  day  it  can 
be  seen  and  produced  in  evidence. 

§  440.  Two  of  the  proposed  Articles2  were 

1  4  Elliot's  Debates,  316. 

2  The  second  of  the  original  series  was  in  these  words  :  "  No  law 
varying  the  compensation  for  the  services  of  the  Senators  and  Representatives  shall 
take  effect  until  an  election  of  Representatives  shall  have  intervened."     When 
these  were  proposed,  the  Union  consisted  of  eleven  States  only.    Three  of 
the  eleven  —  viz.,  Massachusetts,  Connecticut,  and  Georgia  —  have  never 
acted  on  any  of  them.    Before  the  others  had  all  acted,  the  number  of 
States  had  increased  to  fourteen,  by  the  accession  of  Rhode  Island,  North 
Carolina,  and  Vermont,  so  that  eleven,  instead  of  nine,  were  required  for 
their  adoption.    At  this  juncture,  and  before  the  admission  of  Kentucky 
increased  the  number  to  fifteen,  it  was  found  that  eleven  States  had 
adopted  the  ten  Amendments,  leaving  out  the  other  two.     The  one  above 
recited  was  negatived  by  Rhode  Island,  New  York,  New  Jersey,  and 
Pennsylvania,  while  agreeing  to  the  rest ;   and  only  New  Hampshire, 
Vermont,  Delaware,  Maryland,  Virginia,  North  Carolina,  and  South  Caro- 
lina agreed  to  this  with  the  other  ten.     Thus  seven  States  only  have 
ratified  this  Amendment,  and  it  has  not  since  been  taken  up  for  conside- 
ration or  re-consideration  by  any  of  the  other  States. 


LEGISLATIVE  POWERS  —  SPECIAL.  395 

rejected;  but  the  other  ten  were  ratified  by  the 
legislatures  of  three-fourths  of  the  States,  and 
constitute  the  first  ten  of  the  Amendments  now 
making  a  part  of  the  Constitution.  In  these, 
certain  particular  rights  are  plainly  declared  or 
recognized,  as  natural,  legal,  and  subsisting 
rights  of  the  people,  and  so  made  their  consti- 
tutional rights.  They  become  a  part  of  the 
supreme  law  of  the  land,  and  so  bind  the  govern- 
ment, and  all  subordinate  governments,  —  every 
body,  in  fact,  owing  allegiance  to  the  Constitu- 
tion.1 

§  441.  The  opinion  of  the  Court,  per  Mr. 
Chief  Justice  Spencer,  says,  "The  Article  in 
question  [fifth  Amendment]  does  extend  to  all 
judicial  tribunals  in  the  United  States,  whether 
constituted  by  the  Congress  of  the  United  States 
or  the  States  individually.  The  provision  is 
general  in  its  nature  and  unrestricted  in  its 
terms;  and  the  sixth  Article  of  the  Constitu- 
tion declares,  that  that  Constitution  shall  be 
the  supreme  law  of  the  land,  and  the  judges  in 
every  State  shall  be  bound  thereby,  any  thing 
in  the  constitution  or  laws  of  any  State  to 
the  contrary  notwithstanding.  These  general 
and  comprehensive  expressions  extend  the  pro- 
visions of  the  Constitution  of  the  United  States 
to  every  Article  which  is  not  confined,  by  the 
subject-matter,  to  the  national  government,  and 
is  equally  applicable  to  the  States."2  — "  The 

1  See  People  v.  Goodwin,  18  John  E.,  187.  2  Ibid. 


396          LEGISLATIVE  POWERS.  —  SPECIAL. 

legislature  of  this  State  is  as  much  bound  by 
this  [fifth  Amendment]  provision  in  the  Consti- 
tution of  the  United  States,  as  they  would  be 
were  it  contained  in  our  own  Constitution." l  In 
the  case  of  Houston  v.  Moor,  5  Wheat.  Rep.,  Mr. 
Justice  Johnson  said,  "  In  cases  affecting  life  or 
member,  there  is  [in  the  fifth  Amendment]  an 
express  restraint  upon  the  exercise  of  the  pun- 
ishing power.  But  it  is  a  restriction  which 
operates  equally  upon  both  [i.e.,  national  and 
State]  governments."  Mr.  Chief  Justice  Mar- 
shall said,2  w  The  Constitution  of  the  United 
States  was  made  for  the  whole  people  of  the 
Union,  and  is  equally  binding  upon  all  the  courts 
and  all  the  citizens."  Mr.  Chief  Justice  Taney 
said,3  w  The  Constitution  of  the  United  States, 
and  every  Article  and  clause  in  it,  is  a  part  of 
the  law  of  every  State  in  the  Union,  and  is  the 
paramount  law." 4 

§  442.  These  rights  are  :  — 

1.  The  free  exercise  of  religion,  .without  any 
legal  establishment  thereof. 

2.  The  freedom  of  speech  and  of  the  press. 

3.  The  right  to  assemble  and  petition  the  gov- 
ernment.6 

4.  The  right  to  keep  and  bear  arms.6 

1  Case  of  Dart.  Coll.,  p.  59,  per  Jer.  Mason,  argmndo. 

2  In  Farmers'  &  Mechanics'  Bank,  v.  Smith,  6  Wheat.  Rep.,  131. 

3  Prigg's  Case,  16  Peters'  Rep.,  628. 

4  e.  con.,  see  Barker  v.  the  People,  3  Cowen's  R.,  686;  James  v.  Com- 
monwealth, 12th   Sergeant  &  Rawle's  R.,  220  ;   Barren  v.  Baltimore, 
7  Peters'  Rep.,  243.  5  In  Article  I.  6  In  Article  II. 


LEGISLATIVE  POWERS.  —  SPECIAL.  397 

5.  To  exemption  from  having  soldiers  quar- 
tered in  his  house,  unless  by  law  in  time  of 
war.1 

6.  To  security  from  unreasonable  searches  and 
seizures  and  illegal  warrants.2 

7.  To  exemption  from  trial  for  infamous  crime, 
unless  on  indictment  by  a  grand  jury,  or  in  army 
or  navy. 

8.  To  exemption  from  more  than  one  trial  for 
the  same  offence. 

9.  To  exemption  from  being  a  witness  against 
himself  in  a  criminal  case. 

10.  To  life,  liberty,  and  property,  till  deprived 
by  due  process  of  law. 

11.  To  just  compensation  for  property  taken 
for  public  use.3 

12.  In  criminal  cases,  to  distinct  accusation, 
speedy  public  trial,  impartial  jury  of  the  State 
where  committed,  witness  personally  present  in 
Court,  his  own  witnesses  and  counsel.4 

13.  To  trial  by  jury  in  civil  suits  at  common- 
law.6 

14.  To  exemption  from  excessive  bail  or  fines, 
and  cruel  or  unusual  punishments.6 

15.  The  mention  of  particular  rights  not  to 
disparage  others  not  mentioned.7 

16.  A  reserved  right  to  all  powers  not  dele- 
gated to  the  State  or  .general  governments.8 

i  Article  III.  2  in  Article  IV.  8  In  Article  V. 

«  In  Article  VI.          5  In  Article  VII.  6  ^  Article  VIII. 

»  Article  IX.  8  jn  Article  X. 


398  LEGISLATIVE  POWERS.  —  SPECIAL. 

\ 

§  443.  This  mode  of  Amendment  was  next 
resorted  to  successfully,  by  the  third  Congress, 
and  resulted  in  the  eleventh  Amendment.  It 
effectually  negatives  all  right  in  any  individual, 
whether  citizen  of  another  State  or  alien,  to  sue  a 
State  of  the  Union,  before  a  court  of  the  United 
States,  for  any  cause  whatever.  Citizens  of  the 
United  States,  not  being  citizens  of  any  particu- 
lar State  other  than  the  State  sued,  are  not 
expressly  mentioned.  It  unquestionably  weakens 
the  power  of  the  government  to  that  extent.  It 
revokes  so  much  of  the  original  purpose  of  the 
people  "to  establish  justice,"  as  consists  in  the 
ability  of  the  judiciary  to  do  justice  at  the  suit 
of  the  individuals  mentioned,  though  suffering 
injustice  from  any  State  of  this  Union. 

§  444.  The  twelfth  Amendment  was  proposed 
at  the  first  session  of  the  eighth  Congress,  and 
approved  by  the  required  majority  of  the  State 
legislatures  in  1804.  By  requiring  the  electors 
of  President  and  Yice-President  to  designate 
on  their  ballots  for  which  office  each  candidate 
is  voted  for,  it  takes  away  one  of  the  contin- 
gencies on  which  an  election  of  President  might 
devolve  on  the  House  of  Representatives. 

§  445.  An  unsuccessful  attempt  to  alter  the 
Constitution  was  made  at  the  second  session  of 
the  thirteenth  Congress.  It  failed  for  the  want 
of  the  requisite  number  of  State  legislatures  to 
support  it. 

Near  the  close  of  the  last  session  of  the  thirty- 


LEGISLATIVE  POWERS.  —  SPECIAL.  399 

sixth  Congress,  in  February  and  March,  1861, 
after  seven  of  the  Southern  States  had  passed 
their  secession  Ordinances,  and  their  Senators 
and  Representatives  had  taken  formal  leave  of 
Congress,  the  following  amendment  was  passed 
by  a  two-thirds  vote  in  each  House,  viz.,  w  ~No 
amendment  shall  be  made  to  the  Constitution 
which  will  authorize  or  give  to  Congress  the 
power  to  abolish  or  interfere,  within  any  State, 
with  the  domestic  institutions  thereof,  including 
that  of  persons  held  to  labor  or  service  by  the 
laws  of  said  State."  Two  days  afterwards, 
President  Lincoln,  in  his  Inaugural  Address, 
said,  "that,  holding  such  a  provision  now  to  be 
implied  constitutional  law,  I  have  no  objections 
to  its  being  made  express  and  irrevocable."  But, 
as  it  was  not  wanted  by  anybody  for  any  other 
purpose  than  to  pacify  the  Southern  States,  and 
as  they  refused  to  be  pacified  by  it,  it  was  never 
taken  up  or  acted  upon  by  the  legislature  of  any 
State,  and  so  fortunately  failed  to  encumber  and 
disgrace  the  Constitution. 

§  446.  The  thirteenth  Amendment,  abjuring 
slavery  throughout  the  United  States,  was  pro- 
posed by  the  thirty-eighth  Congress  at  their  last 
session,  Jan.  31,  1865.  Thirty-six  States  had 
then  been  admitted  to  the  Union,  eleven  of  which 
were  at  that  time  carrying  on  a  civil  war  in 
rebellion  against  the  government.  Of  the  remain-, 
ing  twenty-five  States,  twenty  had  adopted  it  in 
five  months  (June  30).  Three  others,  Oregon, 


4:00  LEGISLATIVE  POWERS.  —  SPECIAL. 

California,  and  New  Jersey,  adopted  it  after- 
wards, and  within  a  year  from  the  time  it  was  pro- 
posed, leaving  only  two  of  the  twenty-five,  viz., 
Delaware  and  Kentucky,  who  objected.  On  the 
18th  of  December,  however,  and  before  Oregon, 
California,  and  New  Jersey  had  adopted  it,  Mr. 
Secretary  Seward  issued  his  official  proclamation, 
announcing  that  twenty-seven  States,  or  three- 
fourths  of  the  whole  number  admitted,  had 
adopted  it,  and  it  was  therefore  a  part  of  the 
Constitution.  To  make  this  out,  he  had  to  in- 
clude seven  of  the  States  in  rebellion,  viz.,  Vir- 
ginia, Louisiana,  Tennessee,  Arkansas,  North 
Carolina,  South  Carolina,  and  Georgia.  If  these 
States  had  then  no  organized  government  under 
the  Constitution,  so  as  to  be  capable  of  acting 
for  their  people  and  legally  binding  them  by 
their  action,  the  Amendment  could  not  have  been 
legally  ratified  till  twenty-one  or  more  of  those 
States  which  had  such  constitutional  govern- 
ments had  actually  ratified  it  as  the  Constitution 
requires. 

§  447.  We  have  heretofore  seen  that  the  Con- 
stitution, as  it  originally  stood,  never  authorized 
slavery  or  property  in  man,  in  any  form  or  under 
any  name;  and  that  the  personal  rights  of  the 
citizens,  whether  natural-born  or  naturalized, 
recognized  and  covered  by  it,  are  altogether  in- 
compatible with  the  existence  of  any  such  rela- 
tion among  the  people.  So  that  the  only  legal 
operation  of  this  Amendment  was  to  re-assure 


LEGISLATIVE  POWERS.  —  SPECIAL.  401 

the  original  Constitution  in  this  respect,  and  to 
negative  and  countermand,  in  express  terms,  the 
system  of  violence  and  injustice  that  had  been 
illegally  and  studiously  fostered  and  extended, 
under  a  false  construction  and  maladministration 
of  an  instrument  adapted  and  intended  to  effect 
its  decline  and  extinction.  The  2d  section  of  the 
Amendment  does  a  similar  work  of  supereroga- 
tion, by  authorizing  Congress  "  to  enforce  "  this 
particular  provision,  when  they  had  abundant 
authority  for  executing  the  whole  Constitution 
without  it. 

§  448.  The  fourteenth  Amendment  was  pro- 
posed in  June,  1866,  by  the  thirty-ninth  Congress 
at  their  first  session,  by  a  vote  of  three-fourths 
of  the  Senate  and  more  than  that  of  the  House, 
and  is  now,  1866,  in  the  process  of  adoption  by 
the  State  legislatures.1  In  respect  to  the  powers 
of  the  government,  it  is  of  the  same  general 
character  as  the  last.  It  re-affirms  some  pre-ex- 
isting powers,  but  adds  no  new  ones.  It  makes 
some  wholesome  provisions  which  Congress  were 
fully  authorized  to  have  made  themselves,  but 
could  not  have  prevented  a  future  Congress  from 
unmaking.  The  first  section  is  in  these  words : 
"  All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States  and  of  the  States 

1  It  has  since  been  adopted  by  more  than  three-fourths  of  the  twenty- 
seven  States,  now  (1867)  actually  composing,  by  participating  in,  the  gov- 
ernment. 

26 


402  I&GISLATIVE  PO WEBS.  —  SPECIAL. 

\ 

wherein  they  reside.  "No  State  shall  make  or 
enforce  any  law  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United 
States ;  nor  shall  any  State  deprive  any  person  of 
life,  liberty,  or  property  without  due  process 
of  law,  or  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws."  This 
will  scarcely  be  claimed  by  anybody  to  delegate 
any  thing  new  to  the  government,  or  to  prohibit 
the  States  from  doing  any  thing  which  otherwise 
they  might  rightfully  do. 

§  449.  The  2d  section  begins,  "Representa- 
tives shall  be  apportioned  among  the  several 
States  according  to  their  respective  numbers, 
counting  the  whole  number  of  persons  in  each 
State,  excluding  Indians  not  taxed;"  almost  in 
the  exact  words  of  the  2d  section  of  Article  I., 
leaving  out  those  which  discriminate  between 
such  as  are  counted  as  integers  and  as  fractions. 
By  a  different  collocation  of  the  words,  however, 
and  their  connections,  it  will  bear  upon  some 
questions  that  have  been  made  upon  the  origi- 
nal. Who  are  the  " persons  in  each  State"  to 
be  counted  ?  Citizens,  inhabitants,  residents  — 
temporary  or  permanent,  strangers,  aliens,  In- 
dians, &c.?  "Indians  not  taxed"  are  now  alto- 
gether excluded ;  although  before  it  was  by  some 
considered  doubtful  whether  they  were  excluded 
only  from  the  first  class.  This  total  exclusion  is 
compatible  with  the  preceding  section,  only  on 
the  ground  that  the  Constitution  has  made  them 


LEGISLATIVE  POWERS.  —  SPECIAL.  403 

aliens,  and  so  not  "subject  to  the  jurisdiction"  of 
the  United  States,  otherwise  than  aliens  by  tem- 
porary residence ;  for  otherwise  they  are,  by  that 
section  and  by  birthright,  actual  "  citizens  of  the 
United  States,  and  of  the  States  wherein  they 
reside." 

§  450.  If  Indians,  who  are  natural-born  citi- 
zens of  the  country,  are  excluded  from  the  basis 
of  representation  by  an  alienage  created  by  a 
legal  and  artificial  denaturalization,  a  fortiori 
natural-born  aliens  should  be  excluded  also. 
Certainly,  persons  who  are  at  the  time  actual 
citizens  of  other  States  in  the  Union  cannot  be 
included;  and,  for  much  stronger  reasons,  per- 
sons who  are  citizens  of  foreign  States  should 
not.  These  inferences  are  strengthened  by  the 
provision  afterwards  made  for  reducing  the  basis 
of  representation,  in  case  of  an  unlawful  denial 
of  the  right  of  voting.  "  The  whole  number  of 
persons  in  each  State  "  cannot  mean  everybody 
on  the  soil  at  the  particular  time,  nor  exclude 
everybody  who  may  happen  not  to  be  on  it  at 
the  same  time,  and  of  course  should  be  authori- 
tatively construed  by  the  law-making  power. 

§  451.  The  residue  of  the  2d  section  is,  "  But 
whenever  the  right  to  vote  at  any  election  for 
electors  of  President  and  Vice-President  of  the 
United  States,  Representatives  in  Congress,  ex- 
ecutive and  judicial  officers,  or  the'  members  of 
the  legislature  thereof,  is  denied  to  any  of  the 
male  inhabitants  of  a  State,  being  twenty-one 


404:  LEGISLATIVE  POWERS.  —  SPECIAL. 

years  of  age  and  citizens  of  the  United  States, 
or  in  any  way  abridged,  except  for  participation 
in  rebellion  or  other  crime,  the  basis  of  repre- 
sentation therein  shall  be  reduced  in  the  propor- 
tion which  the  number  of  such  male  citizens 
shall  bear  to  the  whole  number  of  male  citizens 
twenty-one  years  of  age  in  such  State."  This 
distinctly  recognizes  an  absolute  right  in  certain 
citizens  to  vote  for  certain  national  and  State 
officers  at  any  election  of  those  officers.  But 
this  is  no  new  thing  in  the  country  or  in  our 
Constitution. 

§  452.  The  fathers  of  our  Revolution,  when 
they  laid  the  foundations  of  our  nationality,  in 
their  first  Declaration  of  Rights,  in  Congress 
assembled,  Oct.  14,  1774,  solemnly  declared,  that 
"  by  the  immutable  laws  of  ^Nature  ...  the 
foundation  of  ...  liberty,  and  of  all  free  gov- 
ernment, is  a  right  in  the  PEOPLE  to  participate 
in  their  legislative  council."  In  exact  accor- 
dance with  this  fundamental  principle  of  repub- 
licanism, it  is  provided  in  our  Constitution,  by 
Article  I.,  section  2,  that  w  Representatives  shall 
be  ...  chosen  ...  by  the  people  [citizens]  of 
the  several  States."  If  they  must  be  chosen 
by  the  citizens,  then  the  citizens  have  a  right  to 
choose  them,  and  must  choose  them;  and  who 
has  a  right  to  say  that  any  citizens  shall  not, 
and  that  any  but  citizens  shall,  choose  them?1 

1  This  has  no  reference  to  forfeiture.  A  man  may  forfeit  his  life, 
and  of  course  any  other  right.  Nor  does  it  refer  to  the  necessary 


LEGISLATIVE  POWERS.  — SPECIAL.  405 

§  453.  The  same  section  2  declares  that  the 
"electors  of  the  most  numerous  branch  of  the 
State  legislature  "  must  have  the  same  qualifica- 
tions, and  by  necessary  implication  must  be  the 
same  citizens.  For  if  the  qualifications  of  the 
electors  of  Representatives  in  Congress  are 
citizenship  and  residence  only,  being  "  people 
of  the  several  States "  respectively,  and  fixed 
to  that  by  the  Constitution,  it  follows  con- 
clusively that  "  the  qualifications  requisite  for 
electors  of  the  most  numerous  branch  of  the 
State  legislature "  must  be  precisely  the  same 
citizenship  and  residence,  and  no  other,  or  the 
two  cannot  be  alike.  Besides,  the  Amend- 
ment itself  expressly  recognizes  "  the  right  to 
vote  at  any  election"  of  certain  officers,  State 
as  well  as  national,  as  appertaining  to  every 
male  citizen  of  twenty-one  years  of  age,  and 
which  cannot  be  rightfully  denied  or  abridged, 
except  for  rebellion  or  other  crime.  This  shows 
that  the  word  "  qualifications,"  as  here  used,  has 
no  reference  to  any  limitation  of  the  constitu- 
tional right  of  the  citizen  to  the  suffrage ;  but 
only  to  such  regulations  of  the  time,  place,  and 
circumstances  as  may  be  judged  necessary  for 
the  effectual .  security  and  beneficial  enjoyment 
of  the  right. 

§  454.  The  next  idea  is,  that  if  any  State  shall 

guardianship  which  God  has  provided  for  the  infant  and  imbecile  por- 
tion of  the  race.  The  right  of  suffrage,  as  a  part  of  the  right  of 
citizenship,  has  always  been  recognized  before  the  Constitution  and 
under  it. 


406  LEGISLATIVE  POWERS.  — SPECIAL. 


\ 


unlawfully  deny  or  abridge  this  constitutional 
right  of  the  citizens,  they  shall  lose  a  propor- 
tionable part  of  their  delegation.  Here  is  cer- 
tainly no  increase  of  power  in  the  government. 
It  was  their  duty  before  to  execute  the  Consti- 
tution; and  if  a  State  should  not  allow  their 
Representatives  to  be  "chosen  by  the  people," 
according  to  the  Constitution,  they  could  not 
rightfully  be  admitted  to  their  seats;  and  the 
States  so  offending  were,  and  still  are,  liable  to 
lose  their  whole  delegation  instead  of  only  a  part 
of  it.  It  will  be  noted,  also,  that  the  reduction  of 
the  basis  is  to  be  in  the  proportion  of  the  ille- 
gally disfranchised  voters  to  the  whole  of  the 
legal  voters;  justly  presuming  that  all  the  adult 
males  represent  an  equal  proportion  of  females 
and  minors.  But  if  the  basis  might  include 
aliens  or  others  who  are  not  citizens,  they  would 
be  represented  in  full,  though  one  half,  three- 
quarters,  or  any  other  portion  short  of  the  whole 
of  the  legal  voters,  should  be  actually  deprived; 
and  thus  the  favored  few  of  the  citizens  would 
not  only  choose  their  own  Representatives,  but 
also  Representatives  for  such  aliens  or  others  as 
might  be  so  included  in  the  basis;  so  that  their 
relative  power  as  citizens  would  be  increased, 
rather  than  diminished,  by  the  reduction  of  the 
basis. 

§  455.  But  this  remedy,  by  diminishing  the 
basis  of  representation,  is  cumulative  only,  —  an 
addition  to,  and  not  a  substitute  for,  any  other 


LEGISLATIVE  POWERS.  —  SPECIAL.  407 

remedy  that  Congress  might  have  applied,  and 
may  still  apply,  for  an  injurious  and  unwarranta- 
ble interference  with  the  elective  franchise  of 
citizens,  by  the  State  governments  or  others,  in- 
dependent of  this  Amendment.  This  Amendment 
enacts  a  new  remedy  that  Congress  could  not 
have  enacted  without  it,  because  it  interferes 
with  the  constitutional  basis  of  representation; 
but  it  neither  increases  nor  diminishes  the  power 
of  the  law-making  department  of  the  govern- 
ment, "to  make  all  laws  necessary  and  proper 
for  carrying  into  execution,"  —  asserting,  pro- 
tecting, and  defending  "  the  right  to  vote  at  any 
election,"  here,  as  elsewhere  in  the  Constitution, 
expressly  recognized  and  admitted  to  appertain 
to  every  male  citizen  of  twenty-one  years  of 
age,  whenever  it  may  be  unlawfully  "  denied " 
or  "  abridged,"  neither  of  which  can  be  lawfully 
done,  "  except  for  participation  in  rebellion  or 
other  crime." 

§  456.  The  3d  section  is,  w  No  person  shall 
be  a  Senator  or  Representative  in  Congress,  or 
elector  of  President  and  Vice-President,  or  hold 
any  office,  civil  or  military,  under  the  United 
States,  or  under  any  State,  who,  having  pre- 
viously taken  an  oath  as  a  member  of  Congress, 
or  as  an  officer  of  the  United  States,  or  as  a 
member  of  any  State  legislature,  or  as  an  execu- 
tive or  judicial  officer  of  any  State,  to  support 
the  Constitution  of  the  United  States,  shall  have 
engaged  in  insurrection  or  rebellion  against  the 


408  LEGISLATIVE  POWERS.  —  SPECIAL. 

\ 

same,  or  given  aid  or  comfort  to  the  enemies 
thereof;  but  Congress  may,  by  a  vote  of  two- 
thirds  of  each  House,  remove  such  disability." 
The  offences  here  described  are  all  of  them 
treason,  with  the  aggravation  of  perjury,  which 
Congress  was  expressly  authorized  to  punish, 
in  any  manner  they  pleased,  by  Article  III.,  sec- 
tion 3. 

§  457.  The  4th  section,  so  far  as  it  recognizes 
"  the  validity  of  the  public  debt  of  the  United 
States,"  and  the  invalidity  of  "  any  debt  or  ob- 
ligation incurred  in  aid  of  insurrection  or  re- 
bellion," certainly  makes  no  alteration  in  the 
previous  law  of  the  land.  So  far  as  it  renders 
"illegal  and  void".  .  .  "any  claim  for  the  loss 
or  emancipation  of  any  slave,"  it  is  restrictive, 
and  a  diminution  of  the  power  of  the  govern- 
ment as  well  as  of  the  States.  The  fifth  sec- 
tion says,  "The  Congress  shall  have  power  to 
enforce,  by  appropriate  legislation,  the  provisions 
of  this  Article ; "  which  of  course  they  have  by 
the  original  Constitution,  as  soon  as  it  becomes  a 
part  of  that  Constitution. 

§  458.  Thus  it  will  appear,  by  a  minute  ana- 
lysis of  this  fourteenth  Amendment,  that  it  con- 
tains 110  augmentation  of  the  powers  of  the 
government.  But  it  is  especially  incumbent  on 
the  American  people  to  watch  narrowly  every 
amendment  which  may  be  proposed,  and  see  that 
there  lurks  not,  under  some  plausible  covering, 
any  latent  mischief  which  may  sap  and  undermine 


LEGISLATIVE  POWERS.  —  SPECIAL.  409 

the  foundation  of  some  efficient  support  to  the 
constitutional  fabric  which  it  cost  our  fathers 
so  much  to  raise,  and  their  children  so  much  to 
defend. 

§  459.  There  has  been  some  question  made  as 
to  the  extent  of  this  power  of  amendment  under 
the  fifth  Article  of  the  Constitution.  It  contains 
but  two  express  restrictions;  one  of  which  has 
become  obsolete,  and  the  other  is,  "  that  no  State, 
without  its  consent,  shall  be  deprived  of  its 
equal  suffrage  in  the  Senate."  "While  the  Arti- 
cle declares  that  amendments  proposed  and  rati- 
fied in  the  manner  therein  prescribed  "  shall  be 
valid,  to  all  intents  and  purposes,  as  part  of  this 
Constitution,"  it  will  be  difficult  to  establish  any 
restriction  beyond  what  is  written. 

From  this  resume  of  the  Amendments  hereto- 
fore made,  it  will  readily  appear  that  no  addition 
has  been  made  thereby  to  the  powers  of  the  gov- 
ernment. It  will  also  appear  that  those  powers 
have  sustained  very  little  damage  from  such  re- 
strictions and  limitations  as  those  Amendments 
contain. 


CHAPTEE    XXVI. 

LEGISLATIVE  POWERS. 

Restrictions. 

§  460.  HAVING  thus  briefly  examined  the  legis- 
lative powers  of  the  government  as  vested  in 
Congress,  by  general  and  special  delegations, 
express  and  implied,  we  come  next  to  consider 
the  limitations  and  qualifications  under  which 
these  powers  are  granted  in  the  Constitution. 
1st,  It  has  already  been  remarked  that  the  terms 
by  which  the  legislative  power  is  "vested  in 
Congress"  (section  1),  are,  to  a  certain  extent, 
restrictive  ab  initio.  "All  legislative  powers 
herein  granted  "  excludes  those  not  herein  grant- 
ed. A  government,  or  a  power  to  govern,  in- 
cludes a  power  to  make  and  execute  laws;  and  a 
limited  government  must  make  its  laws  within 
its  limitations.  The  law-making  department  of 
such  a  government  cannot  extend  -beyond  the 
purposes  and  objects  to  which  the  government  is 
restricted.  It  must  govern  in  the  prescribed 
manner;  and  all  the  legislative,  executive,  and 
judicial  power  requisite  for  this  is  necessarily 
"herein  granted,"  and  no  other  is. 

[410] 


LEGISLATIVE  POWERS.  411 

§  461.  So  "  all  the  legislative  powers  herein 
granted "  are  only  the  law-making  power  re- 
quired for  administering  the  government  and 
executing  the  Constitution.  This  is  what  it 
would  necessarily  be,  independent  of  any  further 
constitutional  definition.  But  the  8th  section 
gives  it  expressly  the  same  definition  almost  in 
the  same  terms,  — w  The  Congress  shall  have 
power  ...  to  make  all  laws  which  shall  be  ne- 
cessary and  proper  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers  vested 
by  this  Constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer 
thereof." 

§  462.  2d,  In  regard  to  taxation,  by  the  third 
clause,  2d  section,  Article  I.,  w  direct  taxes," 
which  have  been  construed  to  mean  taxes  on 
buildings,  land,  and  persons,  "shall  be  appor- 
tioned among  the  several  States  ...  according 
to  their  respective  numbers ; "  and  by  clause  1, 
section  8,  "  duties,  imposts,  and  excises,"  which 
are  indirect  taxes,  "  shall  be  uniform  throughout 
the  United  States."  The  exactions  of  the  gov- 
ernment upon  the  people  for  revenue  are  all  of 
them  taxes,  and  are  direct  or  indirect.  All  direct 
taxes  must  be  laid  by  the  rule  of  apportionment; 
and  all  "  duties,  imposts,  and  excises "  jnust  be 
laid  by  the  rule  of  uniformity.  The  line  of  dis- 
tinction between  direct  and  indirect  taxes  has 
not  been  very  sharply  drawn.  But,  if  there  are 
any  indirect  taxes  not  falling  under  the  head  of 


412  LEGISLATIVE  POWERS. 

duties,  imposts,  or  excises,  there  is  no  constitu- 
tional difficulty  in  their  being  laid  by  either  rule, 
or  by  any  other,  consistent  with  justice. 

§  463.  Since  the  alteration  of  the  Constitution 
making  every  man  a  unit  in  the  enumeration  of 
the  census,  the  only  substantial  difference  is, 
that,  by  the  first  method,  taxes  are  to  be  laid  or 
distributed  among  the  States  in  proportion  to 
their  population;  and,  by  the  second,  they  are 
laid  upon  individuals,  without  reference  to  their 
locality,  according  to  the  use  and  distribution  of 
different  kinds  of  property.  The  first  supposes, 
that  the  quantity  and  value  of  the  property  so 
taxed  is  everywhere  according  to  the  number  of 
the  people ;  or,  in  other  words,  that  every  aggre- 
gate community  has  a  similar  amount  of  that 
kind  of  property  in  proportion  to  its  number  of 
people.  The  other  supposes,  that  every  man 
chooses  for  himself  the  investment  and  appro- 
priation of  his  property,  and  so  becomes  his  own 
assessor,  by  selecting  the  kind  of  property  he 
will  hold,  and  the  use  he  will  make  of  it.  The 
theory  of  the  first,  or  rule  of  apportionment,  is 
so  manifestly  erroneous,  that  it  was  seldom  re- 
sorted to  before  the  adoption  of  the  thirteenth 
Amendment,  the  want  of  which  was  the  sole 
occasion  of  the  rule.  It  may  now  be  presumed, 
that  the  rule  itself,  as  a  practical  one  for  the 
levying  of  any  kind  of  taxes,  will  soon  become 
entirely  obsolete.  > 

§  464.  By  the  fifth  clause,  section  9,  "  !N"o  tax 


LEGISLATIVE  POWERS.  413 

or  duty  shall  be  laid  on  articles  exported  from 
any  State."  This  has  been  understood  to  pro- 
hibit all  duties  on  exports;  but  it  has  been  con- 
tended that  it  only  applies  to  discriminations 
against  "any  State,"  in  distinction  from  others. 
Judge  Story  says,  speaking  of  this  clause,  in 
connection  with  the  next  sentence,  respecting  the 
prohibition  of  any  preference  of  ports  of  one 
State  over  those  of  another,  &c.,  "  The  obvious 
object  of  these  provisions  is  to  prevent  any 
possibility  of  applying  the  power  to  lay  taxes  or 
regulate  commerce  injuriously  to  the  interests 
of  any  one  State,  so  as  to  favor  or  aid  another. 
If  Congress  were  allowed  to  lay  a  duty  on  ex- 
ports from  any  one  State,  it  might  unreasonably 
injure,  or  even  destroy,  the  staple  productions 
or  common  articles  of  that  State." l 

§  465.  If  this  was  the  whole  object,  it  may  well 
be  effected  without  construing  the  clause  to. 
intend  a  total  prohibition  of  all  taxation  on  ex- 
ports; and  their  combination  and  juxtaposition 
in  this  clause  has  been  used  as  an  argument  to 
prove  that  such  was  the  whole  intent  of  the 
clause,  and  should  be  held  to  be  its  whole  effect. 
The  original  wording  of  the  clause  was  "  on  ar- 
ticles exported  from  the  States ; "  which  were 
afterwards  altered  to  the  present  reading.  But 
no  legislative  or  judicial  exposition  of  the  phrase 
has  been  made.  "Appropriations  of  money," 

1  3  Com.,  469;  Eawle  on  the  Constitution,  115;  North- American 
Review,  July,  1865. 


414*  LEGISLATIVE  POWERS. 

which  by  section  9,  clause  6,  must  be  "  made  by 
law,"  for  any  of  the  purposes  of  the  govern- 
ment, by  section  8,  clause  12,  shall  not  be  made 
for  the  use  of  the  armies  w  for  a  longer  term  than 
two  years." 

§  466.  3d,  The  reservation  in  the  sixteenth 
clause  of  the  8th  section,  in  favor  of  the  States, 
of  "  the  appointment  of  the  officers,  and  the 
authority  of  training  the  militia  according  to  the 
discipline  prescribed  by  Congress,"  when  they 
are  not  "  employed  in  the  service  of  the  United 
States,"  is  a  qualification  or  postponement  of  the 
power  of  Congress  in  that  regard,  but  not  a 
negation  of  it;  so  that  there  must  necessarily  be 
a  failure  in  the  performance  of  the  duty  in  case 
the  States,  or  any  of  them,  should  refuse  or  un- 
reasonably neglect  to  perform  it.  To  perform  it 
themselves  would  probably  be  the  most  effectual 
rebuke  of  the  default  of  the  subordinate  govern- 
ment. 

§  467.  4th,  By  the  first  clause  of  section  9, 
t?  The  migration  or  importation  of  such  persons  as 
any  of  the  States  now  existing  shall  think  proper 
to  admit,  shall  not  be  prohibited  by  the  Congress 
prior  to  the  year  eighteen  hundred  and  eight." 
The  only  persons  they  wished  to  prohibit  were 
slaves,  whose  importation  was  already  prohibited 
by  all  the  States  but  three.  Four  new  States 
were  afterwards  admitted  during  the  restriction; 
so  that,  during  the  whole  time,  the  slave-trade 
might  have  been  prohibited  in  ten  old  States  and 


LEGISLATIVE  POWERS.  415 

all  the  territories,  and  after  1802  in  four  new 
States  besides.  Biit  this  never  was  done,  or  even 
the  authorized  tax  imposed  on  the  importation, 
for  the  same  reason  that  nothing  else  was  done 
in  disparagement  of  slavery.1  The  clause  is  now 
obsolete,  and  only  remains  on  the  face  of  the 
Constitution,  to  be  used  in  argument  that  the 
Constitution  expressly  recognizes  slavery,  when 
it  says  not  one  word  about  it ;  though  it  contains 
many  provisions  which  would  authorize  the  gov- 
ernment to  operate  upon  it,  as  well  as  upon  all 
the  other  interests  of  the  nation. 

§  468.  5th,  "The  privilege  of  the  writ  of 
habeas  corpus  shall  not  be  suspended,  unless 
when,  in  cases  of  rebellion  or  invasion,  the  public 
safety  may  require  it."  This  is  in  the  nature  of 
an  article  in  a  bill  of.  rights.  What  the  right  or 
privilege  is,  who  are  entitled  to  it,  and  for  what 
wrong,  are  questions  that  can  be  answered  only 
by  the  common  law.  By  that  we  know  that 
the  writ  was  a  remedy  for  the  loss  of  personal 
liberty,  and  that  both  the  liberty  and  the  remedy 
were  of  common  right.  This  was  the  law  which 
our  ancestors  brought  with  them  to  this  country; 
which  they  and  their  successors  used,  in  every 
State  in  the  Union,  to  the  time  of  the  adoption 
of  the  Constitution,  and  which  that  rendered 
perpetual :  for  if  the  writ  cannot  be  "  suspended," 
or  rendered  temporarily  invalid,  a  fortiori  it 
cannot  be  repealed,  or  rendered  permanently 

1  Ante,  p.  134. 


416  LEGISLATIVE  POWEKS. 

invalid.  That  would  be  "  to  strain  out  the  gnat, 
and  swallow  the  camel." 

§  469.  ]STo  special  provision  is  made  Against  a 
repeal  of  the  law,  because,  the  writ  being  recog- 
nized as  a  personal  right  or  privilege,  in  the 
Constitution  necessarily  becomes  a  part  of  it, 
and  as  permanent  and  irrepealable  as  the  Con- 
stitution itself.  The  clause  has  no  special  refer- 
ence to  Congress,  or  to  any  other  department 
of  the  general  or  subordinate  governments;  but 
applies  equally,  and  at  all  times,  to  every  one 
subject  to  the  laws  of  the  land,  with  the  specified 
exception.  No  provision  is  made  for  issuing  the 
writ,  any  more  than  for  the  form  and  action  of 
it;  because  that  being  a  creature  of  the  common 
law,  explained,  defined,  and  governed  only  by 
that  law,  and  constitutionally  adopted  from  it,  it 
was  necessarily  recognized  in  its  common-law 
nature  and  character,  and  was  demandable  of 
common  right  by  every  man  entitled  to  the  pro- 
tection of  the  government,  wherever  "justice 
was  established"  and  legally  administered.  Can 
it  be  true,  then,  that  the  "judicial  power  of  the 
United  States,"  when  properly  organized,  has 
no  authority  to  issue  this  writ,  unless  a  special 
statute  confers  it?  On  the  contrary,  is  it  not 
true  that  no  court  in  which  the  Constitution 
vests  that  power  could  rightfully  refuse  the  writ 
in  a  proper  case,  unless  it  was  under  a  special 
constitutional  restraint? 

§  470.  An  idea  of  the  importance  of  this  con- 


LEGISLATIVE  POWERS.  417 

stitutional  adoption  of  the  writ  of  habeas  corpus 
is  to  be  reached  only  by  a  consideration  of  the 
nature  and  purposes  of  the  writ,  and  the  right 
which  it  guards  and  protects.  It  is  called  in  the 
English  law,  where  it  originated,  habeas  corpus 
ad  subjiciendum  ;  and  its  object  and  office  is  to 
bring  the  applicant  for  it,  who  may  be  w  any  per- 
son "  under  personal  restraint,  before  a  competent 
tribunal,  to  inquire  into  the  cause  of  his  restraint 
or  detention,  and  to  deliver  or  discharge  him  in 
case  no  legal  cause  is  shown,  or  to  adapt  the 
restraint  to  the  cause,  so  far  as  law  and  justice 
may  be  found  to  require.  It  presupposes  and 
recognizes  the  actual  right,  prima  facie,  of  every 
subject  of  the  government  to  the  personal  enjoy- 
ment of  "  the  blessings  of  liberty,"  and  of  course 
the  universal  right  to  the  writ.  This  constitu- 
tional adoption  of  the  writ,  and  recognition  of 
the  right  it  protects,  is  one  of  the  means  used 
for  the  attainment  of  that  great  and  fundamental 
purpose  and  duty  of  the  government,  "  to  secure 
the  blessings  of  liberty  to  ourselves  and  our  pos- 
terity." 

§  471.  The  right  to  this  writ  operates  as  a 
restraint  on  power.  It  remains  to  inquire,  in 
regard  to  the  excepted  "  cases,"  when,  why,  and 
by  whom  the  restraint  may  be  removed,  and 
power  left  without  this  restraint,  —  when  rebel- 
lion or  invasion  require  it  for  the  public  safety. 
Why,  —  because  they  require  it  for  that  pur- 
pose. By  whom,  —  by  those  responsible  for  the 

27 


418  LEGISLATIVE  POWERS. 

\ 

public  safety.  How,  —  temporarily,  by  suspen- 
sion only;  and  not  permanently,  by  repeal  or 
otherwise.  Rebellion  and  invasion  are  internal 
war;  and  as  Congress  may  declare  war,  and 
"  provide  for  the  common  defence,"  beforehand 
or  afterwards,  by  any  means  in  the  power  of  the 
nation,  they  may  doubtless  use  this  as  one,  if 
they  judge  it  to  be  required. 

§  472.  The  executive  also,  who  must  conduct 
and  carry  on  the  war,  is  responsible  for  its  suc- 
cessful issue,  to  the  extent  of  the  faithful  and 
efficient  use  of  all  the  powers  vested  in  him  by 
the  Constitution,  by  martial  law,  by  the  usages 
of  civilised  warfare, — which  are  a  part  of  the  law 
of  nations,  and  of  course  of  the  Constitution, — 
and  by  all  other  laws  of  the  land.  As  to  what 
are  the  rights  and  usages  of  war,  or  what  is 
authorized  by  the  laws  of  war,  in  the  case  of 
internal  war,  the  people  of  the  United  States 
had,  before  the  late  rebellion,  the  benefit  of 
some  schooling.1  They  have  learned,  not  only 
that  the  habeas  corpus  might  be  suspended  by 
military  authority  in  times  of  invasion,  but  that 
the  judge  himself  who  issued  it  might  be  sus- 
pended also.  This  important  lesson  in  martial 
law  was  taught  practically,  learned  experimen- 
tally, and  accepted  and  approved  deliberately 
and  thoroughly,  by  the  whole  government  and 
people  of  the  nation.  Similar  views  of  the  execu- 
tive or  military  power,  in  the  time  of  internal  war, 

1  Proceedings  of  General  Jackson  at  New  Orleans  in  1815. 


LEGISLATIVE  POWERS.  419 

have  since  been  practised  upon,  and  deliberately 
sanctioned  by  law  in  the  Habeas-Corpus  Act  of 
March,  1863.  It  is  safe  to  presume,  that  the 
civil  rights  of  individuals,  however  protected 
behind  bulwarks  and  barricades  of  words,  stand- 
ing in  the  way  of  military  power,  backed  up  by 
the  peremptory  demands  of  the  public  safety, 
will  always  be  swept  away  as  with  a  besom, 
as  they  always  have  been.  "  Inter  arma  leges 
silent,"  —  that  is,  all  laws,  except  the  law  martial, 
and  so  much  of  the  civil  law  as  it  may  comport 
with  the  paramount  purposes  of  those  control- 
ling the  military  authority  to  tolerate. 

§  473.  6th,  "jNTo  bill  of  attainder  or  ex  post 
facto  law  shall  be  passed."  A  bill  of  attainder, 
by  the  common  law,  as  our  fathers  imported  it 
from  England  and  practised  it  themselves,  be- 
fore the  adoption  of  the  Constitution,  was  an 
act  of  sovereign  power,  in  the  form  of  a  special 
statute  of  the  omnipotent  British  Parliament,  or 
those  who  claimed  to  be  their  successors  in  this 
country,  by  which  a  man  was  pronounced  guilty 
or  attainted  of  some  crime,  and  punished  by 
deprivation  of  his  vested  rights,  without  trial  or 
judgment  per  tegem  terrce.  Such  was  its  length 
and  breadth.  Accordingly  the  Supreme  Court 
of  the  United  States1  say,  and  the  saying  is 
afterwards  fully  approved  by  Judge  Story  and 
Chancellor  Kent,  that  "a  bill  of  attainder  may 
affect  the  life  of  an  individual,  or  may  confiscate 

1  6  Cr.  Kep.,  in  the  case  of  Fletcher  v.  Peck. 


420  LEGISLATIVE  POWERS. 

/ 

his  property,  or  may  do  both."  They  might  have 
added,  that  it  may  affect  his  liberty  also,  as  well 
as  his  other  rights;  and  that  it  may  be  made  to 
apply  to  any  number  of  individuals,  or  to  a  class 
of  persons,  by  definite  description  and  identifica- 
tion, as  well  as  to  a  single  individual  by  name. 

§  474. .  Such  was  the  bill  of  attainder  origin- 
ally in  England,  and  such  was  it  in  this  country 
at  the  time  of  the  adoption  of  the  Constitution. 
By  that  the  whole  subject  was  abolished  and  pro- 
hibited entirely  and  for  ever.  Modern  refinement 
has  introduced  some  distinctions  into  the  Eng- 
lish law,  w^hich  were  never  adopted  here  either  by 
our  common  law  or  by  our  Constitution.  A  bill 
of  attainder  now  in  England  strictly  includes 
only  cases  punished  with  death,  and  consequent 
corruption  of  blood  and  confiscation  of  estate. 
Similar  bills  only  prescribing  less  punishment  are 
called  by  another  name,  —  bills  of  pains  and  pen- 
alties. 

§  475.  But  the  distinction  was  never  adopted 
or  recognized  in  this  country  while  either  were 
allowed.  Both  were  included  under  the  more 
ancient  name.  The  gist  of  the  Act  is  deprivation 
of  rights  by  statute  or  legislative  decree,  rather 
than  by  due  process  and  judgment  of  law.  The 
rights  afiected  may  be  life,  liberty,  property,  and 
reputation ;  all  or  either.  If  it  convicts  of  crime 
only,  without  further  punishment;  or  if  it  takes 
away  life,  liberty,  or  property  only,  without  im- 
puting crime,  —  it  is  still  of  the  same  character, 


LEGISLATIVE  POWERS.  421 

and  falls  into  the  same  class  and  under  the  same 
condemnation. 

§  476.  They  are  all  arbitrary  and  despotic  in 
their  nature,  violative  of  the  essential  principles 
of  justice  and  right,  and  in  direct  opposition  to, 
at  least,  three  other  distinct  and  express  pro- 
visions of  our  Constitution.  1st,  The  legislative 
power  or  right  to  say  what  the  law  shall  be,  is 
given  to  Congress.  This  is  the  only  power, 
relative  to  this  subject,  vested  in  that  depart- 
ment. Bills  of  attainder  are  acts  of  despotic 
and  unlimited  power,  not  acts  of  legislation. 
Legislation  may  prescribe  the  mode  in  which  cer- 
tain vested  private  rights  may  become  divested. 
But  the  right  and  duty  of  applying  this  law  to 
particular  persons  and  cases  as  they  arise,  and 
executing  it,  appertains  to  other  departments. 
To  take  away  private  rights  is  not  the  exercise 
of  legislative  power.  2d,  These  acts  are  all 
ex  post  facto  in  their -nature,  criminal  or  penal  in 
their  character,  and  founded  on  past  transac- 
tions, and  growing  out  of  or  connected  with  past 
considerations;  and,  3d,  They  deprive  a  man  of 
life,  liberty,  property,  and  character,  either  or 
all  of  them,  without  due  process  of  law,  and 
without  trial  and  judgment  per  legem  terrce,  or 
according  to  the  general  laws  of  the  land. 

§  477.  Ex  post  facto  laws  have  generally  been 
considered  to  be  such  only  as  render  an  act 
punishable  in  a  manner  different  and  more  un- 
favorable to  the  criminal,  than  it  was  when  com- 


422  LEGISLATIVE  POWERS. 

mitted,  and  to  be  restricted  to  criminal  and 
penal  matters;  while  retrospective  laws  relate 
exclusively  to  civil  matters.  It  may  be  found 
necessary  to  reconsider  this  distinction.  Civil 
and  criminal  relate  rather  to  the  form  in  which 
the  act  is  dealt  with,  than  to  the  nature  and  char- 
acter of  the  act  itself.  The  same  offence  may  be 
dealt  with  in  either  form  or  both;  and  that 
whether  it  wTas  in  itself  a  violation  of  natural  or 
moral  law,  or  only  in  violation  of  municipal  law, 
or,  as  the  lawyers  say,  malum  per  se,  or  merely 
malum  prohibitum.  It  may  be  punishable,  cor- 
poreally or  pecuniarily,  by  indictment  or  informa-. 
tion  by  the  public  prosecutor,  or  only  in  damages 
by  way  of  personal  remuneration  at  the  private 
suit  of  the  injured  party. 

§  478.  In  such  a  case,  a  law  made  after  the 
offence,  requiring  the  court  to  double  or  triple 
the  fine  or  imprisonment  authorized  at  the  time 
the  act  was  committed,  would  be  no  more  unjust 
than  one  requiring  the  jury  to  assess  double  or 
triple  the  actual  damages  allowable  at  the  same 
time.  Neither  reasons  nor  authorities  are  want- 
ing for  the  opinion  that  this  constitutional  pro- 
hibition ought  not  to  be  construed  as  applicable 
solely  to  criminal  cases.1  If  a  legislature  should 
undertake  to  enact  that  A.  B.  should  be  deprived 
of  his  liberty,  and  become  and  remain  the  slave 
of  C.  D.  for  life,  without  any  imputation  or 

1  See  2  Peters'  Rep.,  416,  681;  4  Wheat.  Rep.,  578;  3  Story's  Cora., 
212. 


LEGISLATIVE  POWERS.  423 

attainder  of  crime,  but  only  because  A.  B.  was 
born  with  a  black  skin  and  C.  D.  with  a  white 
one,  it  would  seem  to  be  diffiult  to  find  a  sound 
reason  why  such  a  statute  was  not  void,  both  as 
a  bill  of  attainder  and  an  ex  post  facto  law, 
though  it  said  not  one  word  about  either  crimes 
or  punishments. 

§  479.  In  the  3d  section  of  Article  III.  there 
is  another  restrictive  clause  in  regard  to  attain- 
der. It  is  in  these  words,  "  Congress  shall  have 
power  to  declare  the  punishment  of  treason ;  but 
no  attainder  of  treason  shall  work  corruption  of 
blood  or  forfeiture,  except  during  the  life  of  the 
person  attainted."  This  authority,  or  at  least 
the  exercise  of  it,  indirectly  repeals  or  annuls 
any  existing  punishment  of  treason,  whether  by 
the  common  law  or  any  other  law;  and  treason 
could  not  be  punished  otherwise  than  as  Con- 
gress declared  what  the  punishment  should  be. 
It  may,  of  course,  be  any  thing  that  Congress 
choose  to  prescribe,  —  death,  attainder,  corrup- 
tion of  blood,  forfeiture,  or  any  other.  What, 
then,  is  the  restriction?  Just  this:  that  if  the 
punishment  is,  in  the  whole  or  in  part,  attainder, 
which  it  cannot  be  without  an  act  of  Congress, 
it  shall  not  include  or  carry  with  it,  shall  not 
w  work  corruption  of  blood  or  forfeiture,  except 
during  the  life  of  the  person  attainted."  It 
operates  directly  on  the  meaning  or  definition  of 
attainder,  and  not  on  the  power  of  Congress. 

§  480.  What,  then,  is  attainder,  without  the 


424  LEGISLATIVE  POWERS. 

constitutional  limitation,  —  that  is,  a  judicial  at- 
tainder, by  judgment  of  law,  after  a  legal  trial 
and  conviction,  as  a  punishment?  For  we  have 
seen,  that  no  legislative  attainder,  or  attainder 
by  legislative  act,  can  be  enacted  for  treason  or 
any  other  crime,  and  of  course  not  without  a 
crime.  Here  we  are  sent  directly  to  the  com- 
mon law;  for  "  attainder  "  is  a  common-law  term, 
existing  nowhere  else,  and  having  no  meaning 
independent  of  the  common  law.  A  judicial 
attainder,  and  we  can  have  no  other,  is,  by  the 
common  law,  no  part  of  the  judgment.  On  con- 
viction of  any  crime  of  which  death  is  the  pen- 
alty, that  is  the  end  of  the  judgment;  but  the 
effect  of  that  judgment,  the  "  inseparable  conse- 
quence," is  attainder,  —  attinctus,  attaint,  stain, 
soil,  disgrace,  —  and  includes  many  important 
disabilities  ;  among  others,  the  "  forfeiture  of 
estate  and  corruption  of  blood."1 

§  481.  By  this  provision,  the  judgment  of 
death,  as  a  punishment  for  treason,  cannot  be 
passed  unless  it  is  prescribed  by  Congress;  and, 
if  it  is  so,  it  cannot  be  attended  with  any  of  these 
consequences,  as  incident  to  it,  though  not  em- 
braced in  it ;  in  the  language  of  our  Constitution, 
as  worked  by  it.  Another  punishment  shall  not  be 
added  to  it,  as  an  incident  or  an  w  inevitable  con- 
sequence," by  construction ;  especially  no  "  cor- 
ruption of  blood  or  forfeiture,"  after  the  traitor 
is  dead.  "  Except  during  the  life "  is  exactly 

i  4  Bl.  Com.,  380. 


LEGISLATIVE  POWERS.  425 

equivalent  to  "  not  after  the  death."  So  that,  by 
this  clause  of  the  Constitution,  the  common-law 
punishment  of  treason,  if  there  was  or  could  be 
any  such  under  our  government,  was  not  only 
implicitly  annulled  by  giving  the  whole  power  of 
punishment  to  Congress,  but  the  legal  meaning 
of  the  common-law  terms  of  punishment  was  so 
altered,  that,  if  Congress  intended  to  punish  by 
any  or  all  the  common-law  means,  they  must  do 
it  directly  and  expressly,  and  cannot  accomplish 
it  by  construction,  as  a  mere  incident  or  conse- 
quence of  the  punishment  of  death. 

§  482.  Even  if  corruption  of  blood  and  forfei- 
ture of  estate  are  expressly  enacted,  they  cannot 
be  made  to  apply  to  anybody  but  the  traitor 
himself,  and  so  cannot  punish  his  innocent  pos- 
terity after  he  is  dead.  In  perfect  accordance 
with  this,  though  going  somewhat  beyond  it,  the 
statute  of  1790  provides  "  that  no  conviction  or 
judgment,  for  any  of  the  offences  aforesaid  [of 
which  treason  is  one],  shall  work  corruption 
of  blood,  or  any  forfeiture  of  estate ; "  saying 
nothing  about  attainder,  or  the  life  of  the  party. 
But  Congress  have,  in  many  instances,  punished 
offences,  and  treason  among  the  rest,  by  confis- 
cation of  estate,  in  whole  or  in  part,  as  well  as 
by  fine,  covering  the  full  value  of  the  whole, 
which  substantially  amounts  to  the  same  thing. 
Forfeiture  can  affect  nothing  but  what  was  his 
own  during  his  life;  and  corruption  of  blood 
cannot  extend  beyond  his  death,  so  as  to  inter- 


426  LEGISLATIVE  POWERS. 

fere  with  any  right  of  inheritance  that  has  to  be 
traced  through  him.  This  remedied  two  evils 
of  the  English  law:  1st,  The  conviction  of  per- 
sons after  they  were  dead,  for  the  purpose  of 
forfeiting  their  estates  in  the  hands  of  their 
heirs;  and,  2d,  The  corruption  of  blood  after 
death,  that  would  prevent  a  descendant  from 
inheriting,  from  a  remote  ancestor,  an  estate 
which  would  have  gone  to  the  traitor,  had  he 
been  living. 

§  483.  7th,  "No  money  shall  be  drawn  from  the 
treasury,  but  in  consequence  of  appropriations 
made  by  law."  As  Congress  must  make  the 
law,  they  only  can  make  the  appropriations;  and, 
as  the  authority  to  make  appropriations  is  not 
limited  to  any  particular  purposes  and  uses,  it 
necessarily  extends  to  all  the  purposes  for  which 
Congress  may  legislate,  and  for  which  the  Con- 
stitution was  ordained  and  established.  Particu- 
larly does  it  extend  to  all  the  purposes  for  which 
taxes  may  be  laid  and  collected,  or  money  bor- 
rowed and  debts  contracted  on  the  credit  of  the 
United  States.  They  may  unquestionably,  in 
the  language  of  the  Constitution,  "  pay  the  debts, 
and  provide  for  the  common  defence  and  gene- 
ral welfare,  of  the  United  States,"  if  any  com- 
bination of  words  in  the  language  could  give 
them  that  authority.  These  include,  and  are  an 
epitome  of,  all  the  objects  for  which  the  govern- 
ment exists.  The  only  thing  indispensably  ne- 
cessary to  sustain  the  right  or  power  of  Congress 


LEGISLATIVE  POWERS.  427 

to  make  any  appropriation  whatever,  would  seem 
to  be,  that  they  should  persuade  themselves  that 
it  has  a  tendency  to  promote  or  advance  the 
Union,  justice,  tranquillity,  safety,  welfare,  or 
liberty  of  the  people  of  the  United  States.  If 
any  thing  can  be  devised  having  a  more  remote 
bearing  in  favor  of  these  important  constitutional 
objects  than  some  of  the  measures  heretofore 
adopted  and  pursued  under  the  auspices  of  strict 
constructionists,  it  might  be  useful  to  have  them 
pointed  out,  so  that  they  may  serve  as  land- 
marks on  this  branch  of  governmental  authority. 

§  484.  8th,  "No  title  of  nobility  shall  be 
granted  by  the  United  States,  and  no  person 
holding  any  office  of  profit  or  trust  under  them 
shall,  without  the  consent  of  the  Congress,  ac- 
cept of  any  present,  emolument,  office,  or  title, 
of  any  kind  whatever,  from  any  king,  prince,  or 
foreign  State."  This  government  cannot  confer 
a  title  of  nobility,  neither  by  Congress  nor  any  or 
all  the  departments;  and  no  officer  of  the  gov- 
ernment can  accept  of  one,  or  of  any  thing  else, 
without  leave  of  Congress,  from  any  foreign 
government. 

§  485.  9th,  By  Article  IV.,  section  3,  "No 
new  State  shall  be  formed  or  erected  within  the 
jurisdiction  of  any  other  State;  nor  any  State 
be  formed  by  the  junction  of  two  or  more  States, 
or  parts  of  States,  without  the  consent  of  the 
legislatures  of  the  States  concerned,  as  well  as 
of  the  Congress."  This  restrains  Congress  from 


428  LEGISLATIVE  POWERS. 

dividing  or  amalgamating  States.  But  it  cannot 
apply  to  places  in  rebellion;  to  people  who  have 
made  themselves  public  enemies,  and  thereby 
lost  all  their  rights  under  the  Constitution;  to 
places  where  there  is  no  government  organized 
under  the  Constitution,  administered  in  subor- 
dination to  it,  and  recognized  as  a  State  govern- 
ment by  the  United  States.  Such  places  and 
such  people,  within  the  jurisdiction  of  the  United 
States,  are  subject  to  the  government  of  the 
United  States  only,  and  without  the  power  of 
making  any  other,  without  their  consent.  The 
Constitution  of  the  United  States  is  "  adequate 
to  all  the  exigencies  of  government;"  and  they 
may  be  governed  by  it,  as  other  places  and  peo- 
ple having  no  State  governments  are  governed 
by  it, — with  their  present  divisions,  or  new  ones, 
or  none,  at  the  election  of  the  government. 
This  is  the  position  in  which  they  have  placed 
themselves,  and  they  have  nobody  else  to  com- 
plain of. 

§  486.  10th,  The  fifth  Article  contains  two 
restrictions  on  the  power  of  amendment:  "That 
no  amendment  which  may  be  made  prior  to  the 
year  1808  shall  in  any  manner  affect  the  first 
and  fourth  clauses  in  the  9th  section  of  the 
first  Article;  and  that  no  State,  without  its  con- 
sent, shall  be  deprived  of  its  equal  suffrage  in 
the  Senate."  The  first  has  long  since  expired 
by  its  own  limitation,  and  become  obsolete;  no 
practical  question  having  ever  been  raised  upon 


LEGISLATIVE  POWEES.  429 

it.  The  other  is  perpetual  in  its  terms,  and  has 
hitherto  proved  effectual  in  its  action.  But  its 
strictly  legal  operation  has  never  been  discussed 
or  questioned.  These  are  the  only  instances  in 
which  the  Constitution  has  attempted  to  place 
any  of  its  provisions  beyond  the  power  of  amend- 
ment. 

llth,  "  ]STo  religious  test  shall  ever  be  required 
as  a  qualification  for  any  office  or  public  trust 
under  the  United  States."  This  requires  no  re- 
mark, and  the  restrictions  in  the  Amendments 
have  been  considered  under  that  head. 


CHAPTEE   XXVII. 

THE  EXECUTIVE. 

§  487.  BY  Article  II.,  "  The  executive  power 
shall  be  vested  in  a  President   of  the   United 

• 

States."  This  declares  the  essential  and  per- 
fect unity  of  the  executive  department.  What- 
ever shall  be  found  to  constitute  "  executive 
power  "  belongs  to  the  President.  "  Shall  be 
vested,"  in  the  language  of  the  Constitution, 
means  is  vested.  "  All  legislative  powers," .  .  . 
"the  executive  power,".  .  .  and  "the  judicial 
power," ..."  shall  be  vested "  respectively  in 
their  appropriate  departments.  Not  that  any 
other  or  further  act  is  necessary  to  vest  them, 
but  they  are  hereby  vested  ipso  facto.  In  this 
sentence,  the  nature  of  the  power  is  no  other- 
wise defined  than  by  its  name;  but  it  is  obvious 
from  that  only,  that  the  "  executive  power  "  can 
be  nothing  but  the  executive  power  of  the  gov- 
ernment, which  must  mean  the  power  to  execute 
the  Constitution  and  all  the  laws  made  under  it. 

[430] 


THE  PRESIDENT.  431 

rr  The  object  of  this  department  is  the  execution 
of  the  law."1 

THE  PRESIDENT. 

§  488.  The  President  is  to  be  chosen  by 
electors,  of  whom  each  State  is  entitled  to  a 
number  equal  to  the  whole  number  of  its  Sena- 
tors and  Representatives, .  to  be  designated  in 
such  manner  as  the  legislature  thereof  may 
direct.  This  has,  in  a  few  instances,  been  con- 
sidered equivalent  to  an  authority  in  the  State 
legislature  to  appoint  them  themselves  ;  and 
such  an  appointment  has  never  been  rejected 
as  unconstitutional.  But  as  Congress  is  ex- 
pressly authorized  to  "determine  the  time  of 
choosing  the  electors,"  a  phrase  almost  exclu- 
sively appropriated  to  a  popular  election,  "  and 
the  day  on  which  they  shall  give  their  votes,"  the 
choice  has  generally  been  referred  to  the  peo- 
ple; and  this  may  now  be  considered  to  be  the 
established  custom,  if  not  the  constitutional 
requisition.  The  Constitution  prescribes  no 
qualifications  for  an  elector,  but  that  he  shall 
not  be  a  member  of  Congress,  or  hold  any  office 
under  the  government. 

§  489.  The  electors  shall  meet  and  vote  by 
ballot,  in  their  respective  States,  on  the  same  day 
in  every  State;  sign,  certify,  seal  up,  direct  to 
the  President  of  the  Senate,  and  transmit  to  the 
seat  of  the  government  of  the  United  States,  a 

i  1  Kent's  Com.,  253. 


432  THE  PRESIDENT. 

list  of  all  the  persons  voted  for  as  President,  and 
the  number  of  votes  for  each.  The  President 
of  the  Senate  shall,  in  the  presence  of  the  Senate 
and  House  of  Representatives,  open  all  the  cer- 
tificates ;  and  the  votes  shall  then  be  counted.  If 
any  person  have  a  majority  of  the  whole  number 
of  electors  appointed,  he  shall  be  the  President 
for  the  term  of  four  years  from  the  fourth  day 
of  March  then  next.  If  no  person  have  such 
majority,  then  from  the  persons,  not  exceeding 
three,  having  the  highest  numbers,  the  House 
of  Representatives  shall,  by  ballot,  immediately 
choose  the  President ;  but  the  vote  shall  be 
taken  by  States,  each  State  having  one  vote. 
A  quorum  for  the  purpose  shall  be  one  or  more 
members  from  two-thirds  of  the  States,  and  a 
majority  of  all  the  States  shall  be  necessary  to 
a  choice.  If  a  President  shall  not  be  chosen 
before  the  fourth  day  of  the  next  March,  the 
"Vice-President  shall  act  as  President,  as  in  case 
of  the  death,  or  other  constitutional  disability,  of 
the  President. 

§  490.  In  the  year  1865,  when  certain  States 
were  in  rebellion  against  the  government,  not 
represented  in  Congress,  and  having  no  State 
governments  regularly  organized  and  admin- 
istered in  conformity  to  the  Constitution  of  the 
United  States,  and  in  obedience  to  its  laws,  Con- 
gress, by  concurrent  resolution,  directed  that  no 
certificates  of  votes  from  those  States  should 
be  opened,  or  votes  counted,  in  their  presence; 


THE  PRESIDENT.  433 

thereby  deciding  that  the  people  inhabiting  those 
States  had  no  right  to  participate  in  the  election : 
which,  as  each  State  is  entitled  to  as  many  votes 
for  President  as  of  Senators  and  Representatives 
in  Congress,  amounts  to  a  decision  that  States 
so  situated  are  not  States  at  all,  and  are  not 
entitled  to  any  of  the  rights  and  privileges  of 
States  in  this  Union. 

§  491.  The  President  shall  receive  a  compen- 
sation for  his  services,  which  shall  not  be  in- 
creased or  diminished  during  the  period  for 
which  he  shall  have  been  elected,  and  shall  not 
receive  any  other  emolument  from  the  United 
States,  or  any  of  them.  He  must  be  a  natural- 
born  citizen,  at  least  thirty-five  years  of  age, 
have  resided  fourteen  years  within  the  United 
States,  and  take  the  required  oath  faithfully  to 
execute  the  duties  of  the  office. 

§  492.  The  Yice-President  shall  have  the  same 
qualifications,  be  chosen  by  the  same  electors, 
at  the  same  time,  in  the  same  manner,  and  for 
the  same  term,  —  no  elector  voting  for  candi- 
dates for  both  offices  belonging  to  his  own  State. 
If  no  person  shall  have  a  majority  of  the  votes 
of  the  whole  number  of  electors  appointed,  the 
Senate  shall  choose  the  Yice-President  from 
those  persons  having  the  two  highest  numbers; 
a  quorum  for  the  purpose  being  two-thirds  of 
the  whole  number  of  Senators,  and  a  majority 
of  the  whole  number  necessary  for  a  choice. 
These  proportions  are  understood  to  refer  to  the 

•    *"  28 


434  THE  PRESIDENT. 

number  of  Senators  actually  admitted  and  sworn 
into  the  Senate,  as  constituted  at  the  time.  The 
Vice-President  has  no  official  duty  to  perform, 
except  to  preside  in  the  Senate,1  unless  in  case 
of  the  removal,  death,  resignation,  or  inability  of 
the  President,  when  that  office  and  its  duties 
devolve  on  him. 

§  493.  "  The  President,  Vice-President,  and  all 
civil  officers  of  the  United  States,  shall  be  re- 
moved from  office  on  impeachment  for,  and  con- 
viction of,  treason,  bribery,  or  other  high  crimes 
and  misdemeanors."2  —  "The  House  of  Repre- 
sentatives .  .  .  shall  have  the  sole  power  of  im- 
peachment," and  "  the  Senate  shall  have  the  sole 
power  to  try  all  impeachments.  When  sitting 
for  that  purpose,  they  shall  be  on  oath  or  affirma- 
tion. When  the  President  of  the  United  States 
is  tried,  the  Chief  Justice  shall  preside;  and  no 
person  shall  be  convicted  without  the  concur- 
rence of  two-thirds  of  the  members  present. 
Judgment  in  cases  of  impeachment  shall  not 
extend  further  than  to  removal  from  office,  and 
disqualification  to  hold  and  enjoy  any  office  of 
honor,  trust,  or  profit,  under  the  United  States ; 3 

1  The  Constitution  places  a  man  in  the  chair  of  the  Senate  who  is  not 
a  member ;  and,  when  the  appointment  of  a  presiding  officer  devolves  on 
them,  there  is  no  constitutional  objection  to  their  doing  the  same,  any 
more  than  there  is  to  their  appointing  the  other  officers  of  the  Senate  in 
the  same  manner. 

2  Section  4,  Article  II. ;  and  by  sections  2  and  3,  Article  I. 

8  "  Shall  not  extend  further  "  does  not  mean  shall  not  exceed  or  fall 
short,  but  be  exactly  removal  and  disqualification,  and  nothing  else ;  be- 
cause the  4th  section  prescribes  only  the  first  half  as  the  punishment  of 


THE  PRESIDENT.  435 

but  the  party  convicted  shall  nevertheless  be 
liable  and  subject  to  indictment,  trial,  judgment,  r 
and  punishment,  according  to  law."  By  section 
2,  Article  II.,  the  President  "  shall  have  power 
to  grant  reprieves  and  pardons  for  offences 
against  the  United  States,  except  in  cases  of 
impeachment;"  and  by  Article  III.,  section  2, 
"  The  trial  of  all  crimes,  except  in  cases  of  im- 
peachment, shall  be  by  jury."  These  are  the 
only  instances  in  which  impeachments  are  men- 
tioned or  alluded  to  in  the  Constitution. 

§  494.  By  these  it  appears,  —  1.  Affirmatively, 
that  civil  officers,  including  the  President  and 

civil  officers,  when  convicted  of  a  certain  class  of  crimes  or  misdemeanors. 
For  these  or  any  other  classes  of  offences,  the  punishment  may  or  may 
not  be  disqualification ;  and  for  other  officers  or  persons  than  civil  offi- 
cers, the  punishment  may  or  may  not  include  removal.  It  "  shall  not 
extend  further  "  than  both,  in  any  case  ;  but  must  it  "  extend  "  so  far  as 
either,  in  every  case  ?  It  must  extend  to  removal  in  the  case  of  "  civil 
officers  "  convicted  of  the  offences  mentioned  in  section  4.  But  the  Con- 
stitution does  not  say  it  shall  "  extend"  to  either,  in  any  other  case.  Per- 
sons or  officers,  other  than  civil  officers,  may  be  convicted  of  petit  crimes 
or  misdemeanors,  or  official  or  personal  delinquencies  and  improprieties, 
worthy  or  not  of  either  of  those  punishments.  If  so,  what  punishment  is 
the  Senate  authorized  to  inflict ;  or,  in  other  words,  what  punishments  do 
"  not  extend  further "  than  removal  and  disqualification  for  office,  abso- 
lute and  perpetual  ?  Certainly  either  alone  is  less  than  both ;  and  either, 
with  limitation  as  to  time,  prerogatives,  perquisites,  &c  ,  is  less  than  the 
whole  without  limitation.  Though  the  same  in  kind,  it  may  be  less  in 
degree,  and  so  "  not  extend  further."  But  how  is  it  with  punishments 
different  in  kind  ?  Deprivation  of  other  rights,  privileges,  and  immunities, 
natural,  civil,  or  political.  Are  any,  and  which,  of  these  less,  and  so 
would  not  exceed  or  "  exfend  further,"  than  deprivation  of  the  right  to 
an  office,  in  existence  or  in  expectancy  ?  We  have  no  experience  to  give 
answer  to  these  questions.  When  private  individuals  are  convicted  of 
treason  or  other  high  crimes,  and  civil  officers  of  delinquencies  not 
amounting  to  high  crimes  or  misdemeanors,  we  shall  see  if  any  different 
punishments  may  be  inflicted  not  exceeding  those  named  in  the  Consti- 
tution. 


436  THE  PRESIDENT. 

\^ 

Vice-President,  may  be  impeached  for  treason, 
'bribery,  or  other  high  crimes  and  misdemeanors; 
and,  if  convicted,  shall  be  removed  from  office, 
and  may  be  disqualified  for  any  office  under  the 
government.  2.  It  does  not  appear,  negatively, 
that  they  may  not  be  impeached  for  other  and 
lesser  offences,  and  punished  in  the  same  manner, 
or  otherwise  not  exceeding  that.  3.  The  gen- 
eral power  of  impeachment  and  trial  may  extend 
to  others  besides  civil  officers,  as  military  or 
naval  officers,  or  even  persons  not  in  office, 
and  to  other  offences  than  those  expressly  re- 
quiring a  judgment  of  removal  from  office;  and 
the  punishment  may  be  the  same,  with  the  ex- 
ception of  removal,  when  the  offender  is  not 
an  officer.  4.  A  pardon,  before  or  after  con- 
viction, could  not  affect  the  punishment,  whether 
it  were  removal,  disqualification,  or  any  thing 
less,  and  whether  the  offence  were  a  high  crime 
at  law,  or  merely  some  misfeasance  or  non-feas- 
ance in  office.  5.  "Whatever  may  be  the  offence 
or  the  punishment  on  impeachment,  or  whoever 
may  be  the  party,  his  responsibleness  to  the  law 
of  the  land,  in  due  course  of  its  ordinary  admin- 
istration, is  not  interfered  with. 

§  495.  It  was  the  opinion  of  the  framers  and 
early  administrators  of  our  government,  that  all 
the  civil  officers  were  impeachable  for  minor  mal- 
feasances in  office,  not  amounting  to  high  crimes 
or  misdemeanors  at  law,  and  punishable  in  any 
manner  not  exceeding  removal  from,  and  dis- 


THE  PRESIDENT.  437 

qualification  for,  office.  In  the  great  debate  on 
the  President's  power  of  removal  from  office,  in 
the  first  Congress,  Mr.  Madison  said,  "  He  will 
be  impeachable  by  this  House,  before  the  Senate, 
for  such  an  act  of  maladministration:  the  wan- 
ton removal  of  meritorious  officers  would  sub- 
ject him  to  impeachment  and  removal  from  his 
high  trust."1  Judge  Chase  was  nominally  im- 
peached "  for  high  crimes  and  misdemeanors," 
though  the  articles  of  impeachment  specified 
only  certain  acts  of  questionable  judicial  pro- 
priety, not  amounting  in  law  to  any  crime,  high 
or  low. 

§  496.  Judge  Pickering  was  convicted  and 
removed  on  charges,  in  this  respect,  of  a  similar 
character;  though  he  was  absent  and  insane,  and 
answered  neither  by  himself  nor  counsel.  In 
the  case  of  Senator  Blount,  he  was  sufficiently 
charged  with  the  crime  of  bribery;  but  he  was 
not  tried,  for  the  Senate  expelled  him,  on  their 
own  motion.  There  is  nothing  in  the  Constitu- 
tion that  asserts  or  implies  that  persons,  whether 
in  office  or  not,  may  not  be  impeached  for  crimes, 
or  for  minor  malfeasances  or  non-feasances,  not 
amounting  to  any  oifence,  for  which  officers  must 
be  removed,  and  punished  on  conviction,  within 
the  limits  allowed  in  section  3  of  the  first  Arti- 
cle. ~No  such  principle  has  been  settled  in 
practice.  If  private  citizens  may  be  impeached 
and  convicted  of  treason  or  other  crime  or  mis- 

1  1  Lloyd's  Debates,  503,  351,  450 ;  4  Elliot's  Debates,  141. 


438  HIS  POWERS. 

demeanor,  they  may  be  punished  in  the  same 
manner. 

HIS  POWERS. 

§  497.  ff  The  executive  power  "  of  the  govern- 
ment, ex  m  termini,  includes  the  aggregate  of 
all  the  agencies  requisite  in  the  execution  of  the 
whole  law.  As  the  department  is  a  unit,  and 
deposited  in  a  single  hand,  with  the  duty  to 
"  take  care  that  the  laws  be  faithfully  executed," 
he  would  be  legally  competent,  and  actually 
authorized,  to  execute  in  person  any  portion  of 
it  he  pleased.  It  being  physically  impossible 
for  him  personally  to  execute  the  whole,  justice 
would  require,  that,  in  the  performance  of  the 
residue  for  which  he  was  responsible,  he  should 
have  the  appointment  and  control  of  his  own 
agents.  But  the  Constitution  -interferes  with 
this  adjustment  of  duties.  The  President  him- 
self is  subject  to  law,  and  only  bound  to  fulfil 
his  duties  according  to  law.  The  law  regulates 
the  appointment  and  duties  of  his  subordinates, 
and  relieves  the  weight  of  his  own  responsible- 
ness  accordingly. 

§  498.  The  law-making,  the  law-construing 
and  applying,  and  the  law-executing  powers  are 
co-ordinate  and  co-extensive,  each  embracing  all 
of  its  kind  necessary  and  proper  for  the  admin- 
istration of  the  government,  and  all  granted  by 
the  Constitution.  If  they  are  not  precisely  and 
definitely  bounded,  they  are  well  distinguished 


HIS  POWERS.  439 

and  understood  in  their  general  outlines,  and 
more  exactly  defined  by  occasi6nal  landmarks, 
placing  particular  matters  on  one  side  or  the 
other  of  the  divisional  line.  For  the  purpose  of 
performing  all  the  duties  of  his  department,  the 
President  is  not  only  the  chief  magistrate,  but 
the  commander-in-chief  of  the  army,  navy,  and 
militia,  when  in  service,  embracing  all  the  phys- 
ical power  of  the  nation,  which  must  be  applied 
to  the  protection  and  administration  of  govern- 
ment and  law.  But  he  must  execute  the  law  as 
it  is  written. 

§  499.  Simply  as  the  executive,  he  can  make 
no  law,  and  dispense  with  no  law;  neither  make 
peace  nor  remit  penalties.  Hence  explanations, 
qualifications,  and  limitations  are  necessary.  The 
powers,  being  limited  by  law,  must  be  executed 
according  to  law.1  The  power  of  declaring 
war  is  vested  in  Congress;  but  this  can  only 
apply  to  such  war  as  is  at  the  option  of  the 
government.  It  cannot  apply  to  such  cases  of 
aggression  as  the  President,  or  even  a  subordi- 
nate officer,  is  bound  to  resist,  and  which  be- 
comes war  by  such  resistance.  While  it  takes 
two  parties  to  make  a  war,  war  may  exist,  both 
in  fact  and  in  law,  though  it  should  be  lawfully 
declared  by  one  party  only,  or  even  by  neither. 
Such  a  war  will  be  speedily  adopted  by  Con- 
gress, as  in  the  case  of  the  Mexican  war  of 

1846  and  the  great  civil  war  of  1861 ;  not  neces- 

• 

1  Brown  v.  United  States,  8  Cr.  Rep.,  110,  147. 


440  HIS  POWERS. 

sarily  by  being  declared,  but  by  being  recognized 
and  acted  upon,  as  the  existing  status  of  the 
country.  :?"War  .  .  .  begins  from  the  mutual 
use  of  force."1  This  doctrine  is  abundantly  sus- 
tained by  the  Supreme  Court  in  the  prize  cases 
reported  2  Black's  R.,  as  well  as  by  all  the  other 
authorities  on  international  law;  and  it  is  logi- 
cally reasoned  out  in  Trumbull's  "  McFingal," 
thus  :  — 

"  For  that's  no  war,  each  mortal  knows, 
Where  one  side  only  gives  the  blows, 
And  th'  other  bears  'em." 

"  But  when  you  shot,  and  not  before, 
It  then  commenced  a  real  war." 

§  500.  When  the  state  of  war  legally  exists, 
it  is  the  law  of  the  land,  which  the  President  is 
bound  to  execute.  He  has  a  discretion  as  to 
the  manner  and  extent,  within  the  rules  of  civi- 
lized warfare  established  by  the  law  of  nations, 
limited,  however,  in  both  respects  by  the  ex- 
pressed will  of  the  legislature."2  The  legislature 
might  perhaps,  with  the  consent  of  the  adverse 
party,  terminate  it  by  repealing  the  declaration, 
and  withholding  the  means  of  prosecuting  it. 
But  the  executive,  as  such,  can  have  no  power 
to  terminate  it,  without  a  direct  violation  of  his 
official  oath  to  execute  the  law.  By  his  partici- 
pation with  Congress  in  the  legislative  power, 
and  with  the  Senate  in  the  treaty-making  power, 
he  mayliave  a  voice  in  the  matter;  but,  simply 
as  the  executive,  he  has  no  power  or  duty  but 

1  Bynkershoek.  2  Brown  v.  United  States,  ubi  sup. 


HIS  POWERS.  441 

to  prosecute  it  to  the  end,  agreeably  to  such  laws 
as  are  or  may  be  made  for  the  purpose. 

§  501.  All  his  duties,  with  respect  to  the 
enemy,  are  not  only  executory,  but  they  are  mili- 
tary and  belligerent,  arising  out  of  the  state  of 
war.  As  commander-in-chief,  he  may  make  a 
truce,  or  partial  cessation  of  hostilities;  so  may 
a  subordinate  commander,  from  the  nature  of 
his  trust.  But  a  general  suspension  of  hostili- 
ties throughout  the  nation,  more  especially  for  a 
length  of  time,  must  be  made  by  the  sovereign 
or  supreme,  legislative  power  of  the  nation.1 
"War  can  only  be  terminated  by  peace.*  An 
abandonment  of  the  war,  or  a  subjugation  of  the 
enemy,  is  not  necessarily  peace.  This  requires 
two  parties  as  much  as  the  war.  A  subdued 
enemy  may  be  held  in  continued  subjugation; 
but  such  holding,  while  it  continues,  is  perpetual 
war. 

§  502.  By  virtue  of  his  military  command,  he 
must  govern  them,  and  may  govern  them,  by 
martial  law,  under  such  forms  of  civil  and  muni- 
cipal regulation  as  he  pleases,  until  the  supreme 
legislature,  or  the  treaty-making  power,  shall 
give  them  peace  or  civil  administration,  in  such 
manner  as  their  circumstances  shall  seem  to 
them  to  demand  and  warrant.  But  his  military 
government,  as  well  as  his  civil,  is  only  execu- 
tory. He  governs  as  the  executive,  to  give 

i  Vattel,  b.  8,  c.  16,  section  233 ;  Grotius,  b.  3,  c.  21 ;  1  Kent's  Com., 
149. 


442  HIS  POWERS. 

/ 
effect  to  actual  law.     If  the  legislative  authority 

does  not  give  a  more  appropriate  and  precisely 
adapted  law  for  the  case,  he  must  conform  to 
such  general  provisions  of  constitutional  and 
international  law  as  may  be  found  suited  to  the 
exigency.  In  that  case,  he  may  undoubtedly 
govern  a  subdued  enemy,  either  directly,  by  his 
own  arbitrary  but  just  will,  or  through  such 
forms  of  voluntary  self-government  as  he  may 
choose  to  permit,  and  they  to  practise,  —  always 
subject  to  his  military  supervision  and  approval. 
§  503.  He  can,  however,  confer  on  them  no 
rights  beyond  those  of  belligerent  enemies,  and 
absolute  submission  to  his  own  military  jurisdic- 
tion. If  he  undertakes  to  proclaim  peace,  aban- 
dons his  military  supervision,  and  remits  them  to 
the  independent  election  and  administration  of 
such  civil  and  political  regulations  and  institu- 
tions as  they  may  have  formerly  practised,  or 
may  thereafter  adopt,  he  not  only  violates  his 
trust,  and  abandons  his  official  duty,  but  he 
usurps  the  sovereignty  and  authority  of  the  na- 
tion which  in  no  sense  belong  to  him,  and  which 
only  are  adequate  to  confer  peace  and  political 
rights  on  such  a  people.  But,  even  if  they  could 
have  peace,  having  no  lawful  civil  government 
within  the  Union,  and  no  right  to  create  one, 
they  would  be  exclusively  under  the  Constitu- 
tion and  laws  of  the  United  States.  These,  as 
the  executive  and  the  only  civil  magistrate,  he 
would  be  bound  to  execute  and  administer,  as 


HIS  POWERS.  443 

they  stood,  in  the  most  effectual  manner  he  could 
under  the  circumstances,  till  the  law-making 
power  should  furnish  the  needful  additions.  He 
could  make  no  new  laws,  nor  authorize  others 
to  make  them,  or  administer  them  if  they  were 
made,  any  more  than  he  could  do  the  same  things 
for  the  rest  of  the  national  domain. 

§  504.  It  was  in  this  manner  that  New  Mexico 
and  California  were  governed,  both  before  and 
after  peace  had  confirmed  our  title  to  them,  until 
Congress  gave  them  a  different  government.  It 
was  in  the  same  way  that  the  rebel  States  were 
ostensibly  governed,  for  a  long  time  after  the 
surrender  of  their  armies,  and  until  the  neglect 
of  Congress  and  the  prevalence  of  evil  counsels 
in  the  executive  had  induced  the  withdrawal  of 
appropriate  military  control  over  them,  and  left 
them,  in  the  hands  of  rebels,  to  the  anarchy,  dis- 
order, and  injustice,  which  their  own  rebellious 
and  unconstitutional  agencies  during  the  war 
had  substituted  in  the  place  of  the  regular  con- 
stitutional governments  of  republican  States 
within  the  Union.  These  they  had  cast  off  and 
abolished,  and  now  attempted  to  resort  to  with 
no  other  profession  of  subordination  to  the  gen- 
eral government  than  they  considered  absolutely 
necessary  to  enable  them  to  participate  in  it,  and 
in  due  time  again  to  essay  its  management  and 
destruction. 

§  505.  The  authority  of  the  nation  over  them 
was  perfect,  as  well  by  reason  of  their  original 


444  HIS  POWERS. 

position  as  a  component  part  of  the  United 
States,  as  by  the  result  of  the  war.  The  Con- 
stitution was  "ordained  and  established  for  the 
United  States,  —  the  whole  land  constituting 
the  national  domain;  and  was  ?  adequate  to  all 
the  exigencies  of  the  government'  thereof,"  — 
all  the  exigencies  of  an  entire  and  good  govern- 
ment. Congress  had  the  same  "  power  to  make 
all  laws  necessary  and  proper"  to  execute  the 
Constitution  over  them,  as  over  the  rest  of 
the  country;  to  govern  through  the  instrumen- 
tality of  State  organizations,  where  there  were 
any  legally  constituted;  and  to  govern  exclu-. 
sively  of  such  organizations  where  there  were 
none.  They  had  the  same  exclusive  jurisdiction 
over  them  that  they  had  over  the  district  of 
Columbia,  the  Territories,  and  all  other  places 
within  the  national  domain  where  State  govern- 
ments were  excluded,  or  where,  for  any  cause, 
none  existed. 

§  506.  They  had  the  same  right  to  organize 
republican  governments  for  them,  and  permit 
them,  so  far  as  they  deemed  it  safe,  to  govern 
themselves  thereby,  and  to  re-admit  them  to 
all  the  rights  and  privileges  of  "  States  in  the 
Union,"  which  they  had  cast  off  and  rejected, 
as  they  had  to  perform  a  similar  operation  in  the 
Territories.  It  was  the  failure  of  Congress  in 
these  respects  that  gave  the  President  the  right, 
and  imposed  on  him  the  duty,  of  continuing  to 
govern  them  by  martial  law;  and  enabled  him, 


HIS  POWERS.  445 

by  the  neglect  of  that  right  and  the  violation  of 
that  duty,  not  to  govern  them  at  all,  but  to  leave 
them,  in  destitution  of  any  suitable  external  con- 
trol, to  do  what  mischief  they  pleased  to  each 
other,  and  to  the  rest  of  the  good  people  of  the 
United  States.1 


1  Since  this  work  went  to  the  press,  Congress  have  passed,  by  more 
than  a  two-thirds  vote  of  both  Houses,  "  An  Act  to  provide  a  more  effi- 
cient government  for  the  rebel  States ; "  which  has  (March  2)  become  a 
law,  notwithstanding  the  President's  veto. 

It  recites,  that  "  no  legal  State  governments  .  .  .  now  exist  in  the 
rebel  States,"  and  that  some  government  is  "necessary  .  .  .  until  loyal 
and  republican  governments  can  be  legally  established ; "  and  enacts  that 
they  "  be  divided  into  five  military  districts,  .  .  .  subject  to  the  military 
authority  of  the  United  States."  That  each  district  shall  be  assigned  to 
a  general  officer  of  the  army,  with  "  a  sufficient  military  force  to  enable 
him  ...  to  enforce  his  authority."  That  it  shall  be  his  duty  ...  to 
protect  all  persons  in  their  rights ;  ...  to  suppress  insurrection,  disorder, 
and  violence ;  ...  to  punish  disturbers  of  the  peace  and  criminals."  He 
may  allow  "  local  civil  tribunals,"  or  "  organize  military  commissions  or 
tribunals  for  that  purpose ; "  and  all  State  "  interference  .  .  .  shall  be 
null  and  void."  No  military  sentence  affecting  life  or  liberty  shall  be  ex- 
ecuted without  the  approval  of  the  officer  in  command ;  and  no  sentence 
of  death,  without  that  of  the  President.  "  When  the  people  of  any  one  of 
said  rebel  States  shall  have  formed  a  government  in  conformity  with 
the  Constitution  of  the  United  States,  .  .  .  framed  by  delegates  elected 
by  the  male  citizens  of  said  State,  twenty-one  years  old  or  upwards,  of 
whatever  race,  color,  or  previous  condition,"  except  disfranchised  rebels 
and  felons  ;  their  constitution  providing  "  that  the  elective  franchise  shall 
be  enjoyed  by  all  such  persons  as  have  the  qualifications  herein  stated  for 
electors  of  delegates ;  and  when  such  constitution  shall  be  ratified  by  a 
majority  of  the  persons  voting  on  the  question,"  .  .  .  and  been  submitted 
to  Congress  and  approved ;  and  when  said  State,  by  vote  of  its  legislature 
elected  under  said  constitution,  shall  have  adopted  the  fourteenth  Amend- 
ment," and  it  "shall  have  become  a  part  of  the  constitution," — then 
said  State  may  be  represented  in  Congress,  and  the  first  four  sections  of 
this  Act  become  inoperative :  provided  that  no  person  excluded  from  office 
by  the  fourteenth  Amendment  shall  be  a  delegate  for  forming  such  State 
constitution,  or  vote  in  the  choice  of  a  delegate.  That,  until  the  people 
shall  be  admitted  to  representation  In  Congress,  any  civil  government 
therein  shall  be  provisional  only,  "  and  shall  be  in  all  respects  subject  to 
the  paramount  authority  of  the  United  States."  In  all  elections  under 


446  HIS  POWERS. 

§  507.  "  He  shall  have  power  to  grant  re- 
prieves and  pardons  for  offences  against  the 
United  States,  except  in  cases  of  impeachment." ] 
This  power  is  general  and  unqualified,  reaching 
all  offences,  and  including  the  remission  of  fines, 
penalties,  and  forfeitures,  with  a  single  excep- 
tion. It  may  be  exercised  before  or  after  con- 
viction, and  absolutely  or  conditionally;  and  no 
law  can  abridge  his  right  in  this  respect.  If  this 
is  not  stated  too  broadly,  it  may  still  be  hoped, 
that,  so  far  at  least  as  respects  some  of  the  in- 
cidents and  effects  of  a  pardon,  means  may  be 
found,  under  some  circumstances,  to  curtail  them 
by  law.  The  legal  effect  of  the  exercise  of  the 
king's  prerogative  of  pardon  was  always  regu- 
lated and  controlled  by  Act  of  Parliament. 

§  508.  The  exception  of  cases  of  impeachment 
undoubtedly  prevents  the  interference  of  the 
President  with  any  trials  or  punishments  by  im- 
peachment; but  it  is  to  be  remembered,  that  all 
such  offences  are  liable  to  be  dealt  with  at  law, 
like  other  similar  offences,  and  may  not  in  this 
respect  be  excluded  from  the  benefit  of  a  par- 
don. But  as  an  impeachment  cannot  prevent 
a  pardon,  so  neither  can  a  pardon  prevent  an 
impeachment;  and  whatever  punishment  on  im- 
peachment may  be  lawful,  caupot  be  remitted 
or  pardoned  by  the  executive.  This  renders  it 

the  provisional  governments,  the  same  persons  only  shall  be  voters  as 
above  provided ;  and  no  person  shall  be  eligible  to  any  office  who  is  in- 
eligible by  the  fourteenth  Amendment. 
1  Article  II.,  section  2. 


HIS  POWERS.  447 

important  to  consider  who  may  be  liable  to  im- 
peachments, and  for  what;  and  what  may  be  the 
punishments  that  do  "  not  extend  further "  than 
to  removal  and  disqualification  for  office. 

§  509.  The  right  to  punish  for  contempts,  not 
being  mentioned  in  the  Constitution,  has  been 
supposed  to  arise  to  all  legislative  and  judicial 
bodies,  by  implication,  and  from  absolute  neces- 
sity. As  any  external  control  over  it  might 
limit  or  destroy  its  efficacy,  it  has  been  inferred 
that  the  same  implication  must,  from  the  same 
necessity,  exclude  the  pardoning  power  from  this 
class  of  offenders.1 

§  510.  "  He  shall  have  power,  by  and  with  the 
advice  and  consent  of  the  Senate,  to  make  trea- 
ties, provided  two-thirds  of  the  Senators  present 
concur."2  A  treaty  is  in  the  nature  of  a  law, 
and  it  should  seem,  on  general  principles,  might 
be  made  by  any  power  competent  to  give  the 
law  on  the  subject  to  which  it  relates.  It  differs 
from  an  ordinary  law,  by  being  international 
in  its  character,  affecting  the  interests  and  re- 
quiring the  concurrence  of  independent  States. 
If  it  should  be  in  the  form  of  a  statute,  condi- 
tioned on  its  adoption,  in  proper  form,  by  another 
State,  and  the  condition  satisfactorily  performed, 
its  operation  on  the  citizens  and  subjects  of  the 
first  State,  within  its  own  jurisdiction,  would 

1  6  Wheat.  Rep.,  204 ;  Anderson  v.  Dunn ;  Rawle  on  Constitution, 
chap,  xvii.,  p.  177 ;  3  Story's  Com.,  358. 

2  Article  II.,  section  2. 


448  HIS  POWERS. 


hardly  be  distinguishable  from  that  of  an  ordi- 
nary act  of  legislation  on  the  same  subject.  2sTot 
only  so,  but  our  Constitution  makes  it  expressly 
"  the  supreme  law  of  the  land,"  when  "  made 
under  the  authority  of  the  United  States,"  by 
whomsoever  that  authority  may  be  exercised. 

§  511.  Instances  are  not  wanting,  under  our 
government,  where  treaties  have  been  made  by 
the  legislative  power  only,  a  simple  majority  of 
a  quorum  of  both  Houses  of  Congress,  with  the 
approval  of  the  President.  Perhaps  the  most 
notable  instance  of  this  was  the  Act  of  Congress 
of  March  1,  1835,  making  certain  propositions 
to  the  then  independent  State  of  Texas,  by  the 
acceptance  of  which,  on  her  part,  she  merged 
herself  in  the  United  States,  and  became  a  com- 
ponent part  of  the  nation,  and  a  State  in  the 
Union.  This  was  substantially  a  treaty  between 
two  independent  nations,  made,  at  least  so  far  as 
the  United  States  were  concerned,  by  the  legis- 
lative power  exclusively,  and  by  small  majorities, 
when  it  probably  could  not  have  been  made  by 
the  constitutional  majority  in  the  ordinary  mode, 
— by  the  President  and  Senate. 

§  512.  Peace  can  be  made  by  the  legislative 
power,  in  time  of  war,  with  the  concurrence  of 
the  adverse  belligerent,  by  prohibiting  the  pros- 
ecution of  the  war;  which  would  amount  to  a 
treaty.  Instances  of  reciprocal  provisions  for 
commercial  purposes,  made  and  carried  out  be- 
tween independent  States,  by  separate  legislation, 


HIS  POWERS.  449 

dependent  on  their  being  mutually  adopted  and 
executed,  are  substantially  treaties  made,  if  not 
wholly  negotiated,  by  the  legislative  power.  But 
the  extent  to  which  it  may  be  competent  for  the 
supreme  legislature  to  exercise  a  treaty-making 
power  need  not  now  be  considered,  though  a 
limit  short  of  the  full  extent  of  constitutional 
legislation  is  not  readily  perceived.  Interna- 
tional engagements  entered  into  in  this  manner 
may  be  considered  more  emphatically  exposed  to 
the  fluctuations  of  legislative  opinion,  than  the 
more  formal  pledges  of  national  faith  usually 
adopted  in  treaties  negotiated  and  exchanged  by 
the  executive  authority.  This  idea  might  aifect 
arrangements  looking  to  performance  in  futuro, 
but  could  have  no  effect  on  stipulations  execut- 
ing themselves  in  presenti. 

§  513.  However  this  may  be,  there  can  be  no 
question  of  the  right  of  the  American  people  to 
give  a  similar  authority  to  any  other  set  of  offi- 
cers or  agents  they  please.  In  this  instance,  and 
by  this  2d  section,  they  have  expressly  given  a 
ct  power  ...  to  make  treaties  "  to  the  President 
and  Senate ;  and  they  might  in  the  same,  or  in  an 
additional  section,  have  given  a  similar  power  to 
other  functionaries.  In  neither  case  would  the 
power  thus  granted  detract  from  the  general 
legislative  power  of  Congress,  whatever  that 
may  be,  unless  it  should  be  made  in  terms,  or 
by  necessary  implication,  exclusive,  which  would 
directly  negative  the  legislative  power  to  do  the 

29 


450  HIS  POWERS. 

same  thing.  As  the  Constitution  stands,  no  in- 
convenience is  to  be  apprehended  in  the  making 
of  treaties.  Both  modes  require  the  approbation 
of  the  President  and  Senate;  while  the  legis- 
lative mode  wrould  substitute  a  majority  of  the 
House  of  Representatives  for  the  enlarged  ma- 
jority of  the  Senate,  and  a  two-thirds  vote  of 
both  Houses  for  the  approbation  of  the  Presi- 
dent. The  two,  in  the  alternative,  would  seem  to 
furnish  desirable  safeguards  for  the  public  inter- 
est, against  precipitation  on  the  one  hand,  and 
factious  opposition  on  the  other. 

§  514.  Treaties  being  international,  and  re- 
quiring two  parties,  a  general  authority  to  make 
them  must  necessarily  extend  to  and  include  the 
regulation  of  all  subjects  requiring,  or  adapted 
to,  that  mode  of  adjustment.  "  The  power  .  .  . 
embraces  all  sorts  of  treaties, — for  peace  or  war, 
for  commerce  or  territory,  for  alliance  or  suc- 
cors, for  indemnity  for  injuries  or  payment  of 
debts,  for  recognition  and  enforcement  of  prin- 
ciples of  public  law,  and  for  any  other  purposes 
which  the  policy  or  interests  of  independent 
sovereigns  may  dictate  in  their  intercourse  with 
each  other." l  All  these  subjects,  being  matters 
of  national  concern,  are  of  course  not  less  within 
the  purview  of  a  legislative  power,  embracing  the 
safety,  welfare,  and  liberty  of  the  people,  than 
of  the  treaty-making  power.  "When  made,  they 
are  the  supreme  law,  and  equally  binding  on  the 

1  3  Story's  Com.,  355 ;  5  Marshall's  Washington,  650. 


HIS  POWERS.  451 

people  and  on  the  government  in  all  its  branches. 
This  point,  though  formerly  disputed,  is  not  now 
considered  a  debatable  question.1 

§  515.  "He  may,  on  extraordinary  occasions, 
convene  both  Houses  or  either  of  them;  and,  in 
case  of  disagreement  between  them  with  respect 
to  the  time  of  adjournment,  he  may  adjourn 
them  to  such  time  as  he  shall  think  proper; 
he  shall  receive  ambassadors  and  other  public 
ministers."  As  he  may  receive,  so  he  may 
refuse  to  receive  ;  or,  in  other  words,  reject 
them.  He  is  the  only  organ  of  communication 
with  foreign  nations.  Thus  we  see,  that,  besides 
what  would  necessarily  fall  within  his  exclusive 
and  appropriate  duty  as  the  executive,  to  take 
care  that  all  the  laws  are  faithfully  executed,  the 
President  has  a  few  special  powers  expressly 
assigned  to  him  in  the  Constitution,  by  particular 
and  specific  grants.  We  must  next  examine  the 
qualifications  and  restrictions  which  circumscribe 
and  limit  what  would  otherwise  fall  within  the 
appropriate  sphere  of  executive  duty. 

§  516.  Making  and  executing  the  law  would, 
in  their  broadest  signification,  cover  the  whole 
business  of  government.  But  our  Constitu- 
tion, following  the  publicists  and  jurists,  has 
instituted  a  third  department,  devoted  mainly 
to  construing  the  general  rules  of  the  law,  in 
their  application  to  the  special  circumstances  of 
its  subjects,  and  directing  the  manner  of  their 

l  1  Kent's  Com.,  267. 


452  HIS  POWERS. 

\  ' 

execution.  The  duties  of  this  department  are 
intermediate  between  the  other  two,  ancHmpinge 
somewhat  upon  both.  How  far  they  limit  or 
qualify  the  right  of  either  to  adjust  and  apply 
the  law  to  particular  persons  and  cases,  may  be 
best  seen  in  considering  the  judicial  department. 
Another  most  important  qualification  of  the  ex- 
ecutive power  is  the  distribution  which  the  Con- 
stitution has  made  of  the  power  of  appointment 
to  office.  All  officers,  whether  civil  or  military, 
are  executive  officers ;  and  we  have  seen  that  the 
selection  and  control  of  the  agents  by  whom 
the  Jaws  are  to  be  executed,  would  naturally 
result  to  the  department  exclusively  responsible 
for  their  execution.  But  the  Constitution  has 
interfered  with  the  power,  and  of  course  with 
the  responsibility. 

§  517.  1.  All  offices  must  be  established  by 
law,  before  they  can  be  filled.  The  Supreme 
Court  is  established  by  the  Constitution ;  but 
that  foreign  ministers  are,  has  been  denied.  If 
they  are  not,  the  executive  is  dependent  upon 
the  legislature  for  the  ordinary  means  of  exe- 
cuting one  of  his  most  undisputed  prerogatives. 

2.  He  may  nominate  only,  and,  with  the  advice 
and  consent  of  the  Senate,  appoint  all  officers 
established    by    law,    whose    appointments    are 
not  otherwise  provided  for  in  the  Constitution. 

3.  He  may  be  invested,  by  law,  with  a  power  to 
appoint  "  inferior  officers ; "  by  which  is  probably 
meant  officers  inferior  to,  or  at  least  other  than, 


HIS  POWEKS.  453 

the  courts  of  law,  heads  of  departments,  and 
foreign  ministers,  who  are  the  only  others  men- 
tioned. 4.  He  has,  by  legislative  construction 
or  grant,  the  exclusive  power  of  removal,  which 
places  at  his  control  all  officers  appointed  by 
himself,  or  others  holding  at  his  will.  5.  He 
shall  commission  all  the  officers  of  the  United 
States.  6.  He  can  fill  all  vacancies  that  happen 
during  the  recess  of  the  Senate,  by  granting 
commissions,  which  shall  expire  at  the  end  of 
their  next  session. 

§  518.  A  vacancy  is  said  to  "  happen,"  within 
the  meaning  of  this  section,  when  he  removes 
the  incumbent.  If  so,  he  may  take  the  appoint- 
ment of  all  the  executive  officers  to  himself,  at 
any  recess  of  the  Senate ;  and,  if  no  nominee  of 
his  is  confirmed  by  the  Senate  during  their  next 
session,  a  vacancy  will  again  "  happen "  on  the 
adjournment  of  the  Senate,  which  he  may  again 
fill  in  the  same  manner. 

4 

§  519.  This  construction  would  place  all  the 
officers,  not  permanent  by  the  Constitution,  as 
entirely  at  the  disposal  of  the  President  as  if 
no  qualification  of  the  executive  power  had  been 
attempted  by  the  Constitution.  Such  a  consum- 
mation would,  of  course,  be  totally  at  variance 
with  the  designs  and  purposes  of  the  American 
people,  by  whom  it  was  made.  If  freely  used, 
by  a  bad  man,  for  personal  or  party  aggrandize- 
ment, such  a  power  would  be  one  of  the  most 
tremendous  engines  of  mischief  that  can  be  con- 


454  HIS  POWERS. 

ceived  under  our  government.  What  practical 
check  upon  such  a  use  of  the  power  is  now  in 
operation,  is  not  perceived.  Of  those  that  might 
be  applied,  in  case  the  necessity  should  arise, 
these  three  are  the  most  obvious:  — 

1.  To  alter  the  legislative  Acts  which  place  the 
power  of  removal  exclusively  in  the  President. 

2.  To  provide  for  the  permanent  session  of 
the  Senate. 

3.  To  exercise  the  power  of  impeachment  for 
malfeasance  in  office.* 

*  Since  this  work  was  sent  to  the  press,  the  first  of  these  alternatives 
lias  been  adopted  by  Congress. 


CHAPTEE.  XXVIII. 

THE  JUDICIAKY. 

§  520.  BY  Article  III.,  the  judicial  department 
of  the  government  is  composed  of  "  one  Supreme 
Court,  and  such  inferior  courts  as  Congress 
may,  from  time  to  time,  ordain  and  establish." 
A  Supreme  Court  is  ordained  by  the  Constitu- 
tion ;  and,  by  Article  II.,  section  2,  it  is  expressly 
required  that  the  President  "  shall  nominate,  and 
by  and  with  the  advice  of  the  Senate  shall  ap- 
point, .  .  .  judges  of  the  Supreme  Court."  All 
other  courts  are  inferior  to  the  Supreme  Court, 
and  are  such  as  Congress  may  see  fit  to  create; 
and  the  judges  are  appointed  in  the  same  man- 
ner. "  The  judges,  both  of  the  Supreme '.  and 
inferior  courts,  shall  hold  their  offices  during 
good  behavior,  and  shall,  at  stated  times,  re- 
ceive for  their  services  a  compensation .  which 
shall  not  be  diminished  during  their  continuance 
in  office." 

§  521.  Nevertheless,  it  has  been  held  by  Con- 
gress, that,  where  courts  are  established  only  by 
law,  they  may  be  abolished  by  a  repeal  of  the 

[455] 


456  THE  JUDICIAL  POWERS. 

law;  and  thus  the  judges  be  deprived  of  their 
offices  and  of  their  compensation,  notwithstand- 
ing the  Constitution  says  the  offices  shall  be  held 
during  good  behavior,  and  the  compensation 
not  diminished  while  they  are  held.  This  con- 
struction has  been  followed  in  most  of  the  States, 
in  regard  to  such  courts  as  were  established  by 
legislative  Acts,  and  not  by  their  constitutions. 
This  department  is  co-ordinate  with  the  other 
two.  Whatsoever  necessary  and  proper  laws  the 
first  may  make,  and  the  second  may  take  care  to 
have  faithfully  executed,  this  department  may 
administer  judicially,  in  all  cases  legally  brought 
before  them. 

THE  JUDICIAL  POWERS. 

§  522.  The  Constitution,  after  providing  for 
the  organization  of  the  legislative  and  executive 
departments,  vests  in  them,  respectively,  all  the 
legislative  and  executive  powers  of  the  govern- 
ment; and  proceeds  to  point  out,  in  terms  more 
or  less  general  and  particular,  certain  things  that 
they,  may  do,  amounting  summarily,  as  to  the 
first,  to  power  to  make  all  laws  necessary  and 
proper  for  executing  the  Constitution;  and,  as  to 
the  second,  to  power  to  execute  all  laws  so  made, 
and  all  other  laws  of  the  land.  So,  in  regard 
to  this  department,  after  having  provided  for  its 
organization  as  above,  it  proceeds  to  vest  in  it 
the  judicial  power,  in  terms  equally  broad  and 
comprehensive.  ;f  The  judicial  power  of  the 


THE  JUDICIAL  POWERS.  457 

United  States  shall  be  vested"  in  its  courts  as 
above  organized.  These  are  the  same  words  of 
investment  that  are  used  in  regard  to  the  other 
departments,  and  have  never  been  understood  to 
require  an  additional  act  of  investment,  and  no 
authority  is  provided  to  perform  such  an  act, 
but  to  be  of  themselves  an  actual  investment; 
and  they  have  always  been  so  considered  and 
acted  upon,  at  least  by  both  of  the  other  depart- 
ments in  regard  to  themselves.1 

§  523.  The  whole  duty  of  the  courts  expressly 
assigned  in  the  Constitution  is  to  exercise  the 
judicial  power;  and  they  have  no  other.  Con- 
sequently, the  Constitution  proceeds  at  once,  in 
section  2,  to  describe  and  define  the  extent  of 
that  power.  :?The  judicial  power  shall  extend 
to  all  cases  in  law  and  equity,  arising  under  this 
Constitution,  the  laws  of  the  United  States,  and 
the  treaties  made,  or  which  shall  be  made,  under 
their  authority."  This  is  a  broad  and  general 
statement  of  the  judicial  power  of  the  govern- 
ment; and  it  will  be  seen  in  the  sequel,  that,  like 
the  general  statement  of  the  legislative  power 
and  of  the  executive  power,  it  comprehends  and  . 
covers  all  the  items  and  particulars  elsewhere 
mentioned  in  the  Constitution,  and  a  great  deal 
more.  "Judicial"  relates  to  justice;  and  "judi- 
cial power "  is  to  distribute  and  administer  jus- 

1  By  Article  II.,  section  2,  "  The  President  shall  be  the  commander-in- 
chief  of  the  army  and  navy  of  the  United  States."  Who  shall  make  him 
so,  if  the  Constitution  does  not  ?  and  who  shall  vest  legislative,  executive, 
or  judicial  power,  if  the  Constitution  does  not? 


458  THE  JUDICIAL  POWERS. 

tice,  in  judicial  form,  and  is  assigned  "t<)  this 
department,  in  part  execution  of  one  of  the  great 
purposes  of  the  Constitution,  —  "  to  .  establish 
justice." 

§  524.  The  form  of  instituting,  bringing,  en- 
tertaining, hearing,  and  deciding  controverted 
cases,  is  defined  and  settled  by  the  common 
law,  as  it  was  imported  from  England  and 
other  countries,  used  and  approved  here  before 
the  Constitution,  often  referred  to  by  it,  and 
twice  expressly  mentioned  in  it  as  furnishing  the 
existing  law,  and  rule  of  proceeding.  What 
the  power  is  which  is  judicial  in  its  nature,  judi- 
cial in  the  mode  of  its  exercise,  and  judieial  in 
the  conclusiveness  of  its  operation,  is  not  told 
by  the  Constitution,  and  is  nowhere  to  be  learned 
but  from  the  common  law. 

§  525.  "  Shall  extend  to  "  means  shall  include, 
comprise,  apply  to,  and  provide  for.  "  All  cases 
in  law  and  equity  "  are  all  suits,  civil  and  crimi- 
nal, involving  controverted  rights  between  party 
and  party,  and  instituted  in  legal  form  of  judi- 
cial proceedings.  "Arising  under  this  Consti- 
tution, the  laws,  .  .  .  and  treaties,"  &c.,  is 
"  involving  any  question  .  .  .  under  the  Consti- 
tution, laws,  or  treaties  of  the  United  States." l 
Any  question  presented  by  the  facts  of  a  case, 
or  growing  out  of  those  facts,  arises  under  the 
Constitution,  &c.,  when  its  solution  depends 
upon  the  Constitution,  &c.,  or  when  it  is  to  be 

1  3  Story's  Com.,  607. 


THE  JUDICIAL  POWERS.  459 

decided,  by  ascertaining  the  true  meaning  and 
construction  of  any  thing  in  the  Constitution, 
laws,  or  treaties  of  the  United  States. 

§  526.  Every  such  case,  whether  civil  or  crim- 
inal, belongs  to  the  judicial  power  of  the  United 
States,  which  is  vested  ["shall  be  vested"]  in 
the  Supreme  and  other  courts  of  the  Union. 
Not  that  such  question  is  actually  in  dispute 
between  the  parties,  or  is  made  a  point  in  the 
case,  or  even  that  it  is  capable  of  being  made  a 
point  in  any  case.  It  may  be  too  plain  ever  to 
have  been  disputed;  or  it  may  have  been  too 
often  adjudicated,  or  too  long  practised  upon, 
ever  to  be  disputed  again.  Nevertheless,  if  it  is 
involved,  "  forms  an  ingredient," l  in  the  case,  so 
that  it  might  be  raised,  the  case  belongs  to  the 
judicial  power  of  the  United  States. 

§  527.  Thus,  if  the  United  States  should  bring 
an  action  of  assumpsit  against  A.  J.,  to  recover 
damages  for  a  breach  of  promise  in  neglecting 
to  hang  J.  D.,  according  to  contract,  licet  scepius 
requisitus,  the  case  would  obviously  be  within 
the  "judicial  power"  of  the  government;  because 
the  right  of  the  United  States  to  sue  in  their 
own  courts  would  be  involved  in  it,  and  might 
be  raised,  argued,  and  decided  under  the  Consti- 
tution and  laws  of  the  United  States.  Though 
the  question  is  too  clear  to  be  made  at  all,  though 
it  has  been  practically  decided  and  acquiesced  in 
for  near  a  century,  and  though  it  may  probably 

i  Marshall,  C  J.,  9  Wheat.,  738. 


460  THE  JUDICIAL  POWEKS. 


be  the  last  question  that  counsel  learned  in  the 
law  would  think  of  making  in  defence  of  the 
case;  yet,  as  it  would  be  involved,  and  might  be 
disputed,  and  depends  upon  the  Constitution  and 
laws  of  the  United  States,  the  judicial  power 
would  clearly  extend  to  it. 

§  528.  In  this  first  and  general  description  of 
the  power,  no  reference  whatever  is  made  to  the 
character  or  residence  of  the  parties,  to  the  sub- 
ject-matter of  the  controversy,  to  the  origin  of 
the  right  in  dispute,  or  to  the  law  on  which  the 
ultimate  adjudication  may  depend.  The  parties 
may  be  citizens  of  the  same  State,  of  different 
States,  or  of  no  State  at  all ;  or  they  may  be  aliens, 
and  not  citizens.  The  subject-matter  in  dispute, 
the  foundation  of  the  right  claimed,  and  the  law 
on  which  the  merits  depend,  are  all  alike  imma- 
terial, in  respect  to  this  general  limitation  of  the 
judicial  power.  The  merits  of  the  case  may 
depend  upon  domestic  law  or  foreign  law,  local 
law  or  general  law,  statute  law  or  common  law, 
civil  law  or  criminal  law,  municipal  law  or  mari- 
time law,  the  law  of  nations  or  the  by-laws  of 
a  private  corporation,  the  law  of  Turkey  or  the 
law  of  China. 

§  529.  In  relation  to  the  jurisdiction  under 
this  clause,  the  only  question  is,  whether  the  case 
presents,  incidentally  or  otherwise,  "  any  question 
arising  under  [depending  upon,  or  to  be  de- 
cided by]  the  Constitution,  laws,  or  treaties  of 
the  United  States."  If  it  does,  it  is  within  the 


THE  JUDICIAL  POWERS.  461 

"judicial  power  of  the  United  States,"  which  is 
vested  by  the  Constitution  in  its  courts.  These 
words,  say  the  Court,  in  the  case  of  Osborn  v. 
the  United-States  Bank,1  were  "obviously  in- 
tended to  secure  to  those  who  claim  rights  under 
the  Constitution,  laws,  or  treaties  of  the  United 
States,  a  trial  in  the  federal  courts." 2 

§  530.  And  what,  it  may  be  pertinently  asked, 
are  those  rights  within  the  jurisdiction  of  the 
United  States,  civil,  political,  constitutional,  legal, 
or  even  natural,  so  far  as  they  are  recognized  by 
law,  that  are  not  claimed,  held,  and  protected, 
under  and  by  virtue  of  the  Constitution  of  the 
United  States,  —  the  supreme  law  of  the  land? 
*  Where  is  the  Act  that  might  not  be  connected 
with  the  Constitution  or  laws  of  the  United 
States?"1  If  no  such  right  can  be  found,  then 
is  the  jurisdiction  of  this  department  commen- 
surate wTith  that  of  the  government,  of  which  it 
forms  a  co-ordinate  portion ;  and  the  duty  of  the 
government  to  "  establish  justice  "  is  as  unlimited 
as  the  power  of-  the  people,  who  made  and  or- 
dained it  for  that  express  purpose. 

§  531.  Is  the  plaintiff  a  real  or  fictitious  per- 
son? Has  he  a  right  to  sue?  Has  he  a  right 
to  come  into  this  court?  Is  he  a  citizen,  alien, 
friend  or  enemy,  slave  or  free,  inhabitant  or 

1  9  Wheat.  Rep. 

2  See  also  Marbury  -v.  Madison,  1  Cr.  Rep. ;   Martin  v.  Hunter,  1 
Wheat.  Rep. ;  Cohens  v.  Virginia,  6  Wheat  R. ;  and  Gibbous  v.  Ogden, 
9  Wheat.  Rep. 

8  1  Kent's  Com.,  319. 


462  THE  JUDICIAL  POWERS. 

commorant  for  a  day,  under  the  protection  of 
our  government?  Has  he  any  rights  under  our 
Constitution?  All  this  lies  at  the  foundation 
of  every  case,  and  depends  on  the  law  of  the 
United  States.  "The  question  respecting  the 
right  to  make  a  particular  contract,  or  to  acquire 
a  particular  property,  or  to  sue  on  account  of  a 
particular  injury,  belongs  to  every  particular 
case.  The  question  forms  an  original  ingredient 
in  every  cause.  Whether  it  be  in  fact  relied  on 
or  not,  in  the  defence,  it  is  still  a  part  of  the 
cause,  and  may  be  relied  on.  The  right  of 
the  plaintiff  to  sue  cannot  depend  on  the  defence 
which  the  defendant  may  choose  to  set  up.  The 
right  to  sue  is  anterior  to  that  defence,  and  must 
depend  on  the  state  of  things  when  the  action 
is  brought.  The  questions  which  the  case  in- 
volves must  determine  its  character,  whether 
those  questions  be  made  in  the  case  or  not.1 

§  532.  The  2d  section  then  proceeds  to  men- 
tion particular  classes  of  cases  to  which  the 
judicial  power  extends,  not  by  way  of  an  addi- 
tion to,  or  an  enlargement  of,  the  description 
before  given,  by  the  name  of  cases  arising  under 
this  Constitution,  &c. ;  but  rather  as  instances  or 
specimens  of  the  kind  of  relation  in  which  dif- 
ferent classes  of  cases  may  stand  to  the  Consti- 
tution, while  yet  they  come  within  the  judicial 
power,  as  arising  under  it.  The  first  of  these  is, 
"  to  all  cases  affecting  ambassadors,  other  public 

1  Opinion  of  the  Court,  per  Marshall,  C.  J.,  in  Osborn  v.  The  Bank. 


THE  JUDICIAL  POWERS.  463 

ministers,  and  consuls."  These  officers  derive 
their  rank,  prerogatives,  and  immunities,  from 
the  Constitution  and  laws  of  the  United  States, 
the  law  of  nations  being  a  part  thereof;  and  of 
course  any  question  respecting  them  must  arise 
under  the  same  Constitution  and  laws.  This 
would  show  them  to  be  within  the  general  de- 
scription of  the  judicial  power  in  the  preceding 
clause,  without  being  particularly  named,  as  in 
this.  It  would  not  only  include  them  person- 
ally, but  all  other  persons  and  things  that  might 
affect  them  relatively;  and  this  also  must  depend 
upon  the  same  Constitution  and  laws. 

§  533.  The  next  clause  extends  the  judicial 
power  "to  all  cases  of  admiralty  and  maritime 
jurisdiction."  The  admiralty  and  maritime  juris- 
diction depends  upon  the  law  of  nations;  and 
all  the  rights  and  duties  coming  within  it,  and 
which  may  become  the  occasion  of  controversies 
and  cases  for  litigation  in  the  courts,  must  arise 
under  the  Constitution,  of  which  that  law  is  a 
part,  modified,  as  it  may  be,  by  other  laws  and 
treaties  of  the  United  States.  This  clause,  of 
course,  adds  nothing  to  the  judicial  power  over 
cases  "  arising  under  this  Constitution,"  &c.,  as 
described  in  the  first  clause  of  this  section. 

§  534.  The  next  clause  is  "  to  controversies  to 
which  the  United  States  shall  be  a  party."  Some 
criticism  has  been  indulged  on  the  change  of 
phraseology  here  from  "cases"  to  "controver- 
sies," the  justice  of  which  is  not  perceived. 


464  THE  JUDICIAL  POWERS. 

Surely  it  cannot  be  pretended  that  the  judicial 
power  can  reach  any  "  controversy  "  till  it  be- 
comes a  "  case  "  for  litigation  between  party  and 
party,  according  to  the  forms  of  law.  A  court 
or  judicial  tribunal  can  take  no  official  notice  of 
a  "  controversy  "  otherwise  than  in  the  form  of  a 
"  case."  The  act  that  makes  it  a  "  case  "  brings 
it  to  the  official  notice  of  the  court,  and  gives 
them  jurisdiction  to  decide  it,  if  it  arises  under 
the  Constitution.  The  United  States  have  no 
corporate  existence,  and  110  right  or  power  to 
become  a  party  in  any  case,  but  by  virtue  of  the 
Constitution  and  laws.  Of  course  every  such 
case  must  "  arise  under  this  Constitution,"  and 
be  within  its  "judicial  power"  independent  of 
this  clause. 

§  535.  The  last  clause  of  the  2d  section  is 
"to  controversies  between  two  or  more  States, 
between  a  State  and  citizens  o'f  another  State, 
between  citizens  of  different  States,  between 
citizens  of  the  same  State  claiming  lands  under 
grants  of  different  States,  and  between  a  State, 
or  the  citizens  thereof,  and  foreign  states,  citi- 
zens, or  subjects."  The  term  "foreign  states," 
in  this  clause,  means  foreign  nations,  independent 
sovereign  communities,  co-ordinate  and  co-equal 
members,  with  the  United  States,  of  the  great 
family  of  states  or  nations,  under  and  by  virtue 
of  the  law  of  nations.  They  are  not  dependent 
upon  the  United  States,  owe  no  allegiance  to  it, 
and  no  deference  to  our  Constitution.  They  are 


THE  JUDICIAL  POWERS.  465 

foreign,  alien,  outside,  and  independent  of  the 
United  States. 

§  536.  The  word  "  States,"  used  alone  in  the 
same  clause,  refers  to  and  designates  a  different 
class  of  communities  and  political  bodies  of  a 
totally  different  character,  —  not  States  by  the 
law.  of  nations,  or  members  of  the  community 
of  States  and  family  of  nations;  but  only  States 
under  and  by  virtue  of  the  Constitution  of  the 
United  States  and  within  the  Union,  component 
parts  of  the  nation,  and  dependent  upon,  and 
subject  to,  the  Constitution  and  laws  thereof. 
The  States  thus  designated  in  the  clause  are 
States  only  in  name  and  by  virtue  of  the  Con- 
stitution, being  subdivisions  of  the  national  do- 
main, and  constituent  portions  of  the  country. 
They  are  subordinate  parts  of  the  whole  body 
politic,  and  might  just  as  appropriately  have 
been  called  by  another  name,  without  any  change 
of  character. 

§  537.  Such  being  the  diverse  character  of  the 
two  different  political  bodies  mentioned  in  the 
clause,  it  is  obvious  that  no  "  controversy  "  or 
"  case  "  can  occur  among  them  or  their  respective 
members,  as  such,  that  does  not  "arise  under 
this  Constitution,  or  the  laws  and  treaties  of  the 
United  States."  Their  respective  rights,  and 
even  existence,  as  separate  political  agents,  cor- 
porations, depend  entirely  upon  the  Constitution, 
and  the  law  of  nations,  which  is  £  part  of  it. 
"No  question  concerning  them,  or  their  legal  or 

30 


466  THE  JUDICIAL  POWERS. 

equitable  rights,  can  be  presented  that  does  not 
directly  involve  and  "  arise  under  this  Constitu- 
tion." This  principle  was  thoroughly  examined 
and  fully  established  in  the  case  of  Osborn  v. 
the  United-States  Bank,  before  cited,  where  it 
was  held  by  the  Supreme  Court,  that  the  judicial 
power  of  the  United  States  extended  to  cases 
brought  by  the  Bank,  by  the  Postmaster-Gene- 
ral, &c.,  in  consequence  of  their  being  consti- 
tuted by,  and  owing  their  existence  and  all  their 
rights  as  corporate  bodies  to  the  laws  of  the 
United  States. 

§  538.  The  whole  extent  of  the  "judicial 
power"  of  the  government  is  described  in  this 
1st  cl.,  2d  sect,  of  Art.  3.  In  the  first  and  third 
instances,  it  is  described  by  the  character  of 
the  law  out  of  which  the  case  arises,  and  by 
which  it  may  be  decided;  in  which  at  least  some 
part  of  the  case  is  involved.  In  both  instances, 
the  law  is  that  of  the  United  States.  In  the 
other  cases,  it  is  described  by  the  character  of 
the  parties  litigant,  without  any  reference  to  the 
laws,  foreign  or  domestic,  by  which  the  decision 
may  be  governed.  In  these  last  cases,  where 
the  jurisdiction  depends  on  the  character  of  the 
parties,  it  will  be  noted,  that  the  parties  are 
indebted  for  their  required  character  to  the 
Constitution  and  laws  of  the  United  States. 
Consequently,  this  class  is  brought  within  the 
description  t>f  the  other  class,  as  "  cases  arising 
under  the  Constitution  and  laws,"  and  may  be 


THE  JUDICIAL  POWERS.  467 

decided  by  the  construction  that  shall  be  judi- 
cially put  upon  them. 

§  539.  It  will  also  be  noted,  that  all  the  cases 
of  the  first  class,  depending  on  the  character  of 
the  law,  depend  on.  the  Constitution  itself;  be- 
cause the  laws  and  treaties  of  the  United  States 
owe  all  their  authority  to  the  Constitution,  and 
the  law  of  nations  is  expressly  made  a  part  of 
it.  So  that  all  the  cases  to  which  the  judicial 
power  of  the  United  States  applies  are  "  cases 
arising  under  this  Constitution; "  and  the  other 
parts  of  the  section  are  only  exemplifications, 
reduplications,  or  explanations  of  the  first  and 
broad  general  description  of  the  whole  judicial 
power.  In  this  respect  it  is  like  the  terms  in 
which  the  powers  of  the  other  departments  are 
delegated;  giving  the  general  power  of  the  de- 
partment in  terms  broad  enough  to  cover  all  the 
power  of  that  sort  belonging  to  the  government, 
and  then  superadding  certain  particulars  serving 
as  landmarks,  exemplifications,  or  specimens, 
showing  the  character  of  the  department  and 
the  nature  of  its  duties,  as  distinguished  from 
the  others.  Thus  the  judicial  department  is  co- 
equal and  co-ordinate  with  the  legislative  and 
executive  departments,  construing  and  applying, 
w  to  all  cases  in  law  or  equity,"  all  the  law  the 
Constitution  has  made,  or  authorized  to  be  made 
and  executed,  for  eifecting  the  objects  for  which 
the  government  itself  was  ordained  and  estab- 
lished. 


468  THE  JUDICIAL  POWERS. 

§  540.  In  cl.  2,  sect.  2,  art.  3,  the  Constitution 
assigns  such  portion  of  the  judicial  power,  so 
vested  in  the  department,  as  it  deems  expedient, 
to  the  Supreme  Court,  leaving  all  the  rest  to  be 
exercised  by  "such  inferior  courts  as  Congress 
may,  from  time  to  time,  ordain  and  establish." 
The  portion  assigned  to  the  Supreme  Court  is 
under  two  heads,  —  original  and  appellate. 

§  541.  1st,  Original.  —  "  In  all  cases  affecting 
ambassadors,  other  public  ministers  and  consuls, 
and  those  in  which  a  State  shall  be  party,  the 
Supreme  Court  shall  have  original  jurisdiction." 
"  Shall  have  .  .  .  jurisdiction  "  is  peremptory; 
and  the  use  of  this  language  shows,  that  the 
judicial  power,  of  which  this  is  a  part,  had 
already  been  vested  in  the  department.  If  the 
actual  investment  of  it  required  any  other  agen- 
cy, or  any  other  act  than  had  been  performed, 
then  this  peremptory  assignment  of  a  portion 
of  it  to  a  particular  court  could  not  have  been 
made  till  such  act  had  been  performed;  for, 
otherwise,  it  could  not  be  known  that  it  ever 
would  be  performed,  and  so  this  peremptory 
assignment  fail.  "  Shall  be  vested  "  can  mean 
nothing  else  than  is  vested.  It  has  been  decided 
by  the  Court,  that  this  "original  jurisdiction" 
can  neither  be  enlarged  nor  diminished :  because, 
if  enlarged,  it  would  detract  from  the  constitu- 
tional appellate  jurisdiction;  and,  if  diminished,  it 
would  so  far  deny  all  jurisdiction  to  the  Supreme 
Court,  which  can  take  appellate  jurisdiction  only 


THE  JUDICIAL  POWERS.  469 

in  "other  cases."  It  must  also  be  exclusive; 
because,  if  a  case  of  this  kind  can  originate  in 
any  other  court,  this  court,  not  being  able  to  take 
appellate  jurisdiction,  could  have  no  jurisdiction 
at  all. 

§  542.  2d,  Appellate.  —  The  next  sentence  is, 
"In  all  other  cases  before  mentioned,  the  Supreme 
Court  shall  have  appellate  jurisdiction,  both  as 
to  law  and  fact,  with  such  exceptions,  and  under 
such  regulations,  as  the  Congress  shall  make." 
The  cases  of  "  original  jurisdiction,"  and  the  "  all 
other  cases  before  mentioned,"  are  all  the  cases 
to  which  the  judicial  power  of  the  United  States 
extends;  and  when  it  is  said  that  the  Supreme 
Court  "  shall  have "  original  or  appellate  juris- 
diction over  the  whole  of  them,  it  only  reiterates 
what  it  had  distinctly  said  in  the  first  section  of 
the  Article,  —  that  all  the  judicial  power  of  the 
United  States  "  shall  be  [is]  vested  "  in  its  courts. 
The  "appellate"  portion,  as  well  as  the  "origi- 
nal," is  vested  peremptorily,  entirely,  and  irrev- 
ocably, but  subject  to  "  such  exceptions,  and 
under  such  regulations,  as  the  Congress  shall 
make." 

§  543.  Congress,  then,  may  "  except "  some 
cases  out  of.  the  appellate  jurisdiction  of  the 
Supreme  Court.  But  this  exception  shows  that 
without  it  the  whole  jurisdiction  is  vested,  and 
the  exception  must  be  in  favor  of  some  other 
court  of  the  United  States;  otherwise  the  cases 
excepted  would  be  left  unprovided  for.  They 


470  THE  JUDICIAL  POWERS. 

/— ^  • 

cannot  make  an  exception  out  of  the  judicial 
power  of  the  United  States;  or,  in  other  words, 
they  cannot  diminish,  abandon,  or  relinquish  any 
portion  of  the  judicial  power  of  the  government 
as  vested  by  the  Constitution,  any  more  than 
they  can  do  the  same  to  the  executive  power,  or 
to  their  own. 

§  544.  They  once  undertook  to  resolve,  that 
they  had  no  right  "  to  interfere  in  the  emancipa- 
tion of  slaves,  or  with  their  treatment  in  any  of 
the  States;"  and,  at  another  time,  that  they  had 
no  right  to  abolish  slavery  in  the  District  of 
Columbia.  But  neither  of  these  altered  the 
Constitution.  As  soon  as  they  had  a  disposition 
to  do  the  last,  they  did  it;  and,  if  the  disposition 
had  been  equally  strong  to  do  the  first,  they 
would,  as  they  ought,  have  done  that  also.  As 
it  was  not,  the  people  did  it  for  them. 

§  545.  Their  authority  was  the  same  in  both 
cases.  Congress  can  legislate  only  by  the  pow- 
ers conferred  by  the  Constitution;  and  these  are 
the  same  over  the  whole  land.  If  they  had 
power  to  "  secure  the  blessings  of  liberty  "  to  the 
people  of  the  United  States  in  the  District  of 
Columbia,  they  had  the  same  in  all  the  States 
and  Territories  of  the  Union.  They  have  no 
more  right  to  withhold  from  the  executive  or 
from  the  judiciary  the  appropriate  means  of 
protecting  every  man  against  slavery,  or  of 
securing  to  every  citizen  all  the  privileges  and 
immunities  of  citizenship  in  every  State,  than 


THE  JUDICIAL  POWERS.  471 

% 

they  have  to  say  that  they  will  not,  and  their 
successors  shall  not,  "make  all  laws  necessary 
and  proper  for  carrying  into  execution  all  the 
powers  vested  in  the  government,  or  any  depart- 
ment or  officer  thereof."  And  they  have  no 
more  right  to  say,  that  the  judicial  department 
shall  not  have  jurisdiction  over  every  case, — "all 
cases  arising  under  this  Constitution," — together 
with  the  proper  means  of  executing  it,  than  they 
have  to  accomplish  either  of  the  other  inadmis- 
sible purposes. 

§  546.  It  is  the  duty  of  Congress  to  give  effect 
to  the  whole  constitutional  jurisdiction  of  the 
department,  and  so  to  organize  the  courts  as  to 
render  them  adequate  to  its  execution.  They 
have  no  power  to  curtail  or  restrict,  or  .otherwise 
qualify,  it  in  any  respect.  They  may  remove  or 
"  except "  some  cases  out  of  the  appellate  juris- 
diction of  the  Supreme  Court,  by  giving  it  to 
some  other  court  of  the  United  States  in  which 
the  judicial  power  is  vested,  but  not  by  abolish- 
ing it,  or  leaving  it  to  be  exercised  or  not  by 
any  body  else.  They  may  also  make  "regula- 
tions ; "  that  is,  prescribe  rules  by  which  the 
jurisdiction  shall  be  exercised,  so  as  to  render  it 
efficient  and  effectual  for  its  purposes,  but  in  no 
case  to  limit  or  obstruct  it.  To  regulate  a  juris- 
diction is  to  make  rules  for  its  exercise. 

§  547.  The  judicial  power  is  exactly  defined, 
and  vested  in  the  courts,  by  the  Constitution; 
and  the  only  power  conferred  on  Congress  by 


472  THE  JUDICIAL  POWERS. 

• 

this  clause  is  to  make  exceptions  to,  and  regula- 
tions for,  the  appellate  jurisdiction  of  the  Su- 
preme Court.  If  they  do  neither;  the  Supreme 
Court  has  the  whole  appellate  power  by  the 
Constitution.  If  they  make  "  exceptions,"  they 
must  give  the  cases  excepted  to  some  inferior 
court;  for  the  whole  "judicial  power  of  the 
United  States  shall  be  vested  in  the  Supreme 
Court,  and  in  such  inferior  courts  as  Congress 
may  .  .  .  ordain  and  establish."  If  they  make 
"regulations,"  the  jurisdiction  must  be  exercised 
according  to  the  rules  so  prescribed;  otherwise, 
the  jurisdiction  must  be  exercised  in  conformity 
to  such  rules  as  the  court  itself  may  prescribe, 
according  to  law. 

§  548.  It  is  proper,  though  perhaps  unneces- 
sary, to  remark,  that  this  commentary  on  the 
first  and  second  sections  of  the  third  Article 
has  been  made  on  the  plain  and  obvious  meaning 
of  the  words  of  those  sections,  as  they  stand  in 
the  Constitution,  irrespective  of  any  practice  of 
the  government  on  the  subject  in  its  past  history. 
It  was  the  policy  of  the  earliest  administrations 
not  to  subject  the  machinery  of  the  new  gov- 
ernment at  once  rashly  to  a  full  head  of  steam. 
This  was  for  the  double  purpose  of  not  exposing 
the  public  tranquillity  to  any  unnecessary  strain, 
by  suddenly  adopting  too  many  new  measures 
and  novel  appliances  to  the  daily  avocations  and 
internal  relations  of  the  people,  and  of  gaining 
time  for  themselves  from  the  immediate  pressure 


THE  JUDICIAL  POWERS.  473 

of  the  external  relations  of  the  country,  in  which 
they  found  themselves  deeply  involved,  for  the 
full  consideration  and  experience  necessary  to 
enable  them  rightly  to  understand,  and  wisely 
to  adapt,  all  the  powers  of  the  new  Constitution 
to  meet  the  wants  and  answer  the  expectations 
of  the  people  of  the  United  States. 

§  549.  The  same  policy  was  continued  under 
succeeding  administrations,  for  the  less  honora- 
ble purpose  of  prolonging  the  imbecility  of  the 
general  government;  and  leaving  to  the  subordi- 
nate governments  the  entire  management  of 
those  peculiar  domestic  institutions  and  aristo- 
cratic usages  and  assumptions,  which  the  "just- 
ice," "  welfare,"  and  "  liberty "  of  the  people 
required  and  enjoined  the  national  government  to 
control  and  rectify.  Thus  it  has  happened,  that 
the  third  department  of  the  government  has  never 
been  organized  in  a  manner  to  render  it  compe- 
tent and  fully  adequate  to  the  exercise  of  "the 
judicial  power  of  the  United  States,"  which  is 
vested  in  it  by  the  Constitution. 

§  550.  This  is  painfully  evident  at  the  present 
moment  (1866),  when  the  government  has  no 
other  means  than  its  military  power  for  securing 
to  its  own  citizens  life,  liberty,  or  property  in 
those  places  where  the  State  governments  have 
been  disorganized,  or  are  unable  or  unwilling  to 
administer  the  laws  of  the  United  States,  and 
"  establish  justice ; "  for  which  purpose,  among 
others,  the  government  itself  was  ordained  by 


474  THE  JUDICIAL  POWERS. 


the  American  people.  The  statutes  seem  to  have 
been  framed  upon  the  mistaken  theory  of  confer- 
ring only  such  jurisdiction  as  they  pleased,  where 
they  pleased,  rather  than  of  making  "  excep- 
tions "  to,  and  "  regulations "  or  rules  for,  the 
exercise  of  the  appellate  power,  as  already  con- 
ferred ;  and  then  constituting  "  tribunals  inferior 
to  the  Supreme  Court "  for  the  exercise  of  the 
remaining  "judicial  power  of  the  United  States." 

§  551.  For  instance,  the  first  judicial  Act 
passed  Sept.  24,  1789,  is  entitled  "  An  Act  to 
establish  the  judicial  courts  of  the  United 
States ;  "  apparently  forgetting  that  the  Supreme 
Court  was  established  by  the  Constitution,  and, 
if  it  was  not,  that  no  power  was  given  to  Con- 
gress to  establish  one,  but  only  "  to  constitute 
tribunals  inferior  to  the  Supreme  Court."  And 
again,  by  the  thirteenth  section  of  the  statute, 
:r  The  Supreme  Court  shall  have  appellate  juris- 
diction from  the  circuit  courts,  and  courts  of 
the  several  States,  in  the  cases  hereinafter  spe- 
cially provided  for."  "Which  cases  so  provided 
for  are  far  within  the  boundaries  of  the  Consti- 
tution, which  extends  their  appellate  jurisdiction 
to  "all  cases  within  the  judicial  power  of  the 
United  States,"  except  those  whereof  they  have 
original  jurisdiction,  and  such  other  "  excep- 
tions "  only  as  "  Congress  shall  make." 

§  552.  All  our  judicial  legislation  has  been 
formed  upon  the  same  model;  and  Congress, 
instead  of  doing  the  only  things  they  were  an- 


THE  JUDICIAL  POWERS  475 

thorized  to  do  on  this  subject,  —  to  wit,  to  make 
"exceptions"  to,. and  rules  or  regulations  for, 
the  exercise  of  the  appellate  jurisdiction  of  the 
Supreme  Court,  and  "  to  constitute  inferior  tribu- 
nals "  for  the  residue  of  the  "judicial  power  of 
the  United  States,"  —  have  assumed  to  dole  out 
from  time  to  time,  both  to  the  Supreme  and  in- 
ferior courts,  only  a  miserable  pittance  of  the 
jurisdiction  actually  vested  in  them  by  the  Con- 
stitution. This  course  is  doubly  injurious  to  the 
people  and  their  government.  If  Congress  con- 
sidered the  whole  judicial  power  vested,  as  it 
is,  in  the  Supreme  and  inferior  courts,  and  pro- 
ceeded, in  the  exercise  of  their  constitutional 
duty,  to  make  "  exceptions "  from  the  appellate 
jurisdiction  of  the  Supreme  Court,  they  must 
necessarily  provide  for  its  exercise  by  some 
inferior  court  by  them  constituted,  so  that  the 
independence  and  integrity  of  the  judicial  de- 
partment might  not  be  infringed. 

§  553.  But,  by  assuming  that  the  jurisdiction 
of  the  courts  is  only  by  legislative  grant,  they 
not  only  degrade  the  character  of  the  judiciary 
as  a  co-ordinate  department  of  the  government, 
but  they  absolutely  throw  away  so  much  of  "  the 
judicial  power  of  the  United  States "  as  they 
fail  to  provide  the  means  of  exercising.  In  this 
manner  a  large  proportion  of  "  the  judicial  power 
of  the  United  States "  has  been,  and  is  to  this 
day,  practically  abrogated  and"  annulled,  by  the 
neglect  of  Congress  "  to  make  all  laws  [or  any 


476  THE  JUDICIAL  POWERS. 


laws]  necessary  and  proper  for  carrying  [the 
whole  of  it]  into  execution."  "Whatever  is  done 
in  virtue  of  the  Constitution  or  by  its  authority, 
directly  or  indirectly,  is  said,  in  legal  language, 
to  be  done  under  the  Constitution;  in  the  same 
manner  as  an  authority  given  by  law  is  said  to 
be  exercised  under  the  law. 

§  554.  There  must  be  a  constitutional  way  to 
execute  the  Constitution,  for  the  people  made  it 
to  be  executed;  and,  whenever  a  dispute  or  dif- 
ference arises  about  any  thing  done  or  omitted 
by  virtue  of  its  provisions,  it  is  said  to  arise 
under  the  Constitution;  and  this  whether  the 
authority  in  question  is  more  nearly  or  more 
remotely  derived  from  it.  The  States  themselves 
only  exist,  as  political  bodies,  under  and  by  vir- 
tue of  the  Constitution  of  the  nation;  and  their 
governments  have  no  authority  or  power  inde- 
pendent of  their  recognition  by  the  United  States 
as  subordinate  republics  and  parts  of  the  nation. 
They  can  have  no  independence  or  sovereignty 
while  remaining  in  the  Union. 

§  555.  They  are  not  known  or  recognized  by 
the  law  of  nations,  or  any  other  law  but  the 
Constitution  of  the  United  States,  and  cannot  be 
while  they  are  a  part  of  it.  There  is  no  such 
thing  as  a  nation  within  a  nation.  If  such  a 
dispute  or  difference  assumes  the  form  of  an 
action,  civil  or  criminal,  in  law  or  equity,  it  be- 
comes a  "case"  within  the  meaning  of  the 
2d  section  of  Article  III.,  and  so  within 


THE  JUDICIAL  POWERS.  477 

"  the  judicial  power  of  the  United  States."  As 
the  Constitution  expressly  recognizes  and  adopts 
the  law  of  nations,  the  common  law,  and  the 
admiralty  and  maritime  law,  as  parts  of  the  law 
of  the  land,  it  would  seem  that  cases  arising 
under  those  laws,  within  the  jurisdiction  of  the 
United  States,  were  necessarily  included  in  tjie 
judicial  power,  as  arising  under  the  Constitution 
and  laws  of  the  United  States.  Such,  we  have 
seen  by  the  Proclamation  of  April  22,  1792,  was 
the  understanding  of  the  first  administration  of 
our  government.  It  was  the  understanding  of 
the  judiciary  also,  as  is  manifest  by  the  numer- 
ous charges  delivered  by  them  to  the  grand 
juries  about  that  time,  in  relation  to  violations 
of  the  law  of  nations,  when  no  statute  existed 
defining  or  punishing  such  violations.  Such 
would  seem  also  to  have  been  the  understanding 
of  the  legislative  department. 

§  556.  In  the  Judiciary  Act  of  Sept.  24,  1789, 
where  the  inferior  courts  are  constituted  in  obe- 
dience to  the  Constitution,  it  is  enacted,  section 
9,  "That  the  district  courts  shall  have,  exclu- 
sively of  the  courts  of  the  several  States,  cogniz- 
ance of  all  crimes  and  offences  that  shall  be 
cognizable  under  the  authority  of  the  United 
States,  committed  within  their  respective  dis- 
tricts or  upon  the  high  seas,"  where  only  certain 
punishments  are  to  be  inflicted ;  "  and  shall  also 
have  exclusive  original  cognizance  of  all  civil 
causes  of  admiralty  and  maritime  jurisdiction, 


478  THE  JUDICIAL  POWERS. 

.  .  .  within  their  respective  districts,  as  well  as 
upon  the  high  seas;  .  .  .  and  shall  also  have  cog- 
nizance, concurrent  with  the  courts  of  the  several 
States  or  the  circuit  courts,  as  the  case  may  be, 
of  all  causes  where  an  alien  sues  for  a  tort  only 
in  violation  of  the  law  of  nations  or  a  treaty  of 
t]}e  United  States;  and  shall  also  have  cogni- 
zance, concurrent  as  last  mentioned,  of  all  suits 
at  common  law  where  the  United  States  sue,  and 
the  matter  in  dispute  amounts,  &c.;  and  shall 
also  have  jurisdiction,  exclusive  of  the  courts  of 
the  several  States,  of  all  suits  against  consuls  or 
vice-consuls,  except  for  offences  above  the  de- 
scription aforesaid."  By  section  11  it  is  enacted, 
"that  the  circuit  courts  shall  have  original 
cognizance,  concurrent  with  the  courts  of  the 
several  States,  of  all  suits  of  a  civil  nature,  at 
common  law  or  in  equity,  where  the  matter  in 
dispute  exceeds,  &c.;  and  shall  have  exclusive 
cognizance  of  all  crimes  and  offences  cognizable 
under  the  authority  of  the  United  States,  ex- 
cept," &c. 

§  557.  This  statute  was  passed  at  the  first  ses- 
sion of  the  first  Congress  under  the  Constitution, 
as  a  part  of  the  organization  of  the  government, 
before  the  United  States  had  any  jurisprudence, 
civil  or  criminal,  or  any  code  of  law  or  equity, 
other  than  the  Constitution  and  the  laws  recog- 
nized, continued,  and  adopted  by  it.  "  Cogniz- 
able under  the  authority  of  the  United  States," 
is  only  a  statute  substitute  for  the  constitutional 


THE  JUDICIAL  POWERS.  479 

phrase,  within  "  the  judicial  power  of  the  United 
States."  What  then,  were,  the  "crimes  and 
offences,"  and  "the  suits  of  a  civil  nature,  at 
common  law  or  in  equity,"  "cognizable  under 
the  authority  of  the  United  States,"  or  within 
"  the  judicial  power  of  the  United  States  "?  Un- 
doubtedly just  what  they  are  now,  —  "all  cases 
in  law  and  equity  arising  under  this  Constitution, 
the  laws  and  treaties  of  the  United  States."  The 
United  States  had  then  no  "  law  or  equity,"  but 
what  was  created  or  continued  by  the  Constitu- 
tion. 

§  558.  There  were  no  statutes  rendering  a 
man  liable  to  prosecution,  judgment,  and  punish- 
ment, criminally  or  civilly,  for  any  act  whatever; 
defining  the  injuries  which  might  be  remedied 
by  public  prosecution  or  private  suit,  or  pre- 
scribing any  mode  by  which  either  could  have 
been  incurred  or  pursued.  ISTo  previously  exist- 
ing law  or  right  or  duty  was  repealed  or  abro- 
gated by  the  Constitution,  but  such  as  were  so 
impliedly,  by  being  superseded,  or  rendered  in- 
compatible with  it.  The  law  of  nations,  the  com- 
mon law,  the  admiralty  and  maritime  law,  and  a 
few  Congressional  ordinances,  were  expressly  or 
impliedly  recognized  and  continued  in  force,  and 
were  so  treated  by  the  new  government.  The 
common  law  is  so  in  this  very  definition  of  "  the 
judicial  power,"  as  well  as  in  divers  other  places. 
"  Law  and  equity "  are  two  distinct  systems  of 
jurisprudence,  known  only  to  and  by  the  com- 


480  THE  JUDICIAL  POWERS. 


mon  law;  and  this  judicial  Act,  in  pursuance  of 
the  same  idea,  speaks  expressly  of  the  ""common 
law  and  equity  "  as  different  rules  of  decision  in 
cases  within  the  judicial  power  of  the  United 
States. 

§  559.  Independent  of  any  statute  jurisdic- 
tion, as  soon  as  an  inferior  court  was  instituted, 
all  the  judicial  power  of  the  United  States  was 
vested,  by  the  Constitution,  in  its  own  courts; 
the  inferior  court  taking  all  that  the  Supreme 
Court  could  not.  What  was  "  cognizable  under 
the  authority,"  or  within  "  the  judicial  power," 
of  the  United  States,  was  settled  by  the  Consti- 
tution, and  the  whole  of  it  vested  ["  shall  be 
vested"]  in  its  courts.  When  the  legislature 
had,  in  obedience  to  the  Constitution,  instituted 
a  court  or  courts  for  that  portion  of  the  judicial 
power  which  was  denied  to  the  Supreme  Court, 
viz.,  all  the  original  jurisdiction  of  the  govern- 
ment, except  "  in  cases  affecting  ambassadors, 
other  public  ministers  and  consuls,  and  those  in 
which  a  State  shall  be  party,"  —  what  authority 
had  they  to  go  further,  and  say  that  the  courts 
thus  constituted  should  not  execute  the  power? 

§  560.  All  that  seemed  to  be  required  of  Con- 
gress was  "  to  constitute  such  tribunals  inferior 
to  the  Supreme  Court,"  as  were  appropriate  to 
the  duty ;  and,  when  they  had  made  an  admiralty 
court  and  a  common-law  court,  if  it  was  found 
that  their  duties  were  too  arduous  or  in  danger 
of  interfering,  then  to  make  such  new  distribu- 


THE  JUDICIAL  TOWERS.  481 

tion,  regulation,  or  additional  provision  as  the 
case  might  require.  But  that  the  admiralty 
court  could  not  take  the  admiralty  jurisdiction, 
and  the  common-law  court  could  not  take  the 
common-law  jurisdiction,  both  civil  and  criminal, 
expressly  vested  in  the  courts  of  the  United 
States  by  the  Constitution,  without  further  stat- 
ute authority,  would  be  likely  to  appear  as  ob- 
scure and  mystical  logic  as  it  appeared  to  Mr. 
Justice  Story  and  Chancellor  Kent.1 

§  561.  A  different  view  of  the  subject,  how- 
ever, was  early  inaugurated,  and,  in  accordance 
with  the  wishes  of  those  who  favored  the  gen- 
eral purpose  of  reducing  the  prerogatives  of  the 
nation  to  the  lowest  possible  fraction,  and  leav- 
ing every  thing  to  depend  on  the  local  agencies, 
was  brought  into  practical  operation,  and,  with- 
out examination,  has  been  successfully  retained 
to  the  present  time.  The  case  of  the  United 
States  v.  Hudson  &  Goodwin2  was  a  political 
case,  involving  a  most  important  constitutional 
principle,  decided  without  argument,  with  little 
apparent  judicial  examination,  by  a  divided  court, 
and  in  recognized  accordance  with  prevailing 
popular  clamor.  Mr.  Justice  Johnson,  who  de- 
livered the  short  opinion,  says,  "We  consider 
the  question  as  having  been  long  since  settled 
in  public  opinion."  He  also  mentions  "  the  prev- 
alence of  opinion  in  favor  of  the  negative  of 
the  proposition ; "  and  states  the  question  thus : 

i  1  Gal.  R.,  488;  1  Kent's  Com.,  320.  2  7  Cr.  Rep.,  32. 

31 


482  THE  JUDICIAL  POWERS. 

:r  Whether  the  circuit  courts  can  exercise  a  com- 
mon-law jurisdiction  in  criminal  cases?"  He 
adds,  that  he  "  states  it  thus  broadly,  because  a 
decision  on  a  case  of  libel  will  apply  to  every 
case  in  which  jurisdiction  is  not  vested  in  those 
courts  by  statute." 

§  562.  So,  though  the  "  question  "  is  very  broad, 
the  "  decision  "  is  to  be  much  broader  than  the 
question.  The  case  presented  only  a  prosecution 
for  libel.  The  "  question,"  as  stated,  applied  to 
any  criminal  prosecution  at  common  law.  But 
the  "  decision  "  was  intended  to  apply,  and  does 
apply,  so  far  as  it  is  considered  a  valid  exposition 
of  the  Constitution,  not  to  criminal  cases  only, 
but  to  civil  cases;  and  not  only  to  those  arising 
under  the  common  law,  but  to  all  cases,  civil  or 
criminal,  in  law  or  equity,  arising  under  this  Con- 
stitution, the  law  of  nations,  the  admiralty  and 
maritime  law,  or  any  other  law  except  statute 
law.  That  portion  of  the  court  who  concur 
with  Judge  Johnson  in  this  opinion,  and  who 
are  not  named,  ground  it  entirely  on  this  as- 
sumption, that  the  inferior  courts  constituted  by 
Congress  "  possess  no  jurisdiction  but  what  is 
given  them  by  the  power  that  creates  them." 

§  563.  The  Constitution  says,1  the  inferior 
courts,  with  the  Supreme  Court,  shall  have  the 
whole  "judicial  power  of  the  United  States;" 
and  then  proceeds  to  define  accurately  the  por- 
tion belonging  to  the  Supreme  Court,  which 

1  Article  III.,  section  1. 


THE  JUDICIAL  POWERS.  483 

certainly  Congress  could  not  increase,  w  and  of 
which,"  this  opinion  says,  with  as  near  an  ap- 
proach to  accuracy  as  would  comport  with  the 
association,  "  the  legislative  power  cannot  de- 
prive it."  It  is,  then,  as  certain  as  logic,  that, 
by  the  Constitution,  these  Congressional  tribu- 
nals, whether  one  or  more,  must  possess  all 
"  the  judicial  power  of  the  United  States,"  ex- 
cept what  belongs  to  the  Supreme  Court.  The 
doctrine,  according  to  the  two  statements,  stands 
thus:  By  the  Constitution,  the  inferior  tribunals 
shall  have  all  "  the  judicial  power  of  the  United 
States,"  but  what  is  vested  in  the  Supreme  Court. 
By  this  decision,  they  shall  have  "  no  jurisdic- 
tion but  what  is  given  .them  by"  Congress. 
This  comes  as  near  to  a  direct  contradiction  in 
terms  as  would  be  consistent  with  judicial  cour- 
tesy and  official  decorum.  As  to  authority,  as 
the  last  was  only  authorized  by  a  part  of  the 
court,  the  Constitution  may  perhaps,  at  some 
future  time,  be  allowed  to  prevail. 

§  564.  Four  years  afterwards,  in  1816,  the 
question  was  again  presented  to  the  court,  in 
the  case  of  the  United  States  v.  Coolidge.2 


1  We  have  seen,  however,  that,  by  the  13th  section  of  the  Judiciary 
Act,  Congress  attempted,  and  probably  with  success,  to  restrict  the  appel- 
late jurisdiction  of  the  Supreme  Court  (which  by  the  Constitution  extends 
to  all  cases  in  law  or  equity,  civil  or  criminal,  within  the  judicial  power 
of  the  United  States,  and  not  included  in  their  original  jurisdiction)  to 
appeals  "  from  the  circuit  courts  and  courts  of  the  several  States,  in  the 
cases  hereinafter  specially  provided  for ; "  which  may  be  few  or  many, 
and  increased  or  diminished  at  the  pleasure  of  the  legislature. 

2  1  Wheat.  R.,  415. 


484  THE  JUDICIAL  POWERS. 

Mr.  Justice  Johnson  then  said  for  the  court, 
"  Upon  the  question  ...  a  difference  of  opinion 
has  existed,  and  still  exists:  ...  we  should, 
therefore,  have  been  willing  to  have  heard  the 
question  discussed."  But  the  defendant  did  not 
appear,  and  the  Attorney- General  declined  to 
argue  it,  as  his  predecessor  had  done  in  the 
former  case.  "  Under  these  circumstances," 
continued  the  judge,  "the  court  would  not 
choose  to  review  their  former  decision."  The 
learned  and  elaborate  opinion  of  Mr.  Justice 
Story  in  the  circuit  court l  was  thus  overruled, 
on  the  sole  authority  of  the  former  case,  with- 
out an  additional  sentence  of  reasoning  to  the 
meagre  page  in  that  case,  by  a  divided  court, 
and  again  without  argument  or  examination. 
The  court  plainly  invited  an  argument,  and  al- 
most intimated  a  wish  to  abandon  the  narrow 
ground  of  the  former  opinion.  But  it  was  mani- 
fest, that  the  Administration,  represented  by  the 
Attorney-General,  did  not  favor  it,  and  the  court 
would  not  volunteer  a  review  of  the  question. 

§  565.  So  it  has  stood  for  fifty  years,  and  so  it 
stands  to-day,  without  an  effort  on  the  part  of 
any  branch  of  the  government  to  change  it. 
Thus  the  government,  in  the  same  spirit  and  for 
the  same  purpose  that  it  has  neglected  and  de- 
clined* to  exercise  many  of  its  important  powers 
for  the  benefit  of  the  people,  has  absolutely  dis- 
claimed and  abjured  all  power  to  "  secure  the 

i  1  Gal.  Rep.,  433. 


THE  JUDICIAL  POWERS.  485 

blessings  of  liberty,"  and  practically  abrogated 
and  thrown  away  a  large  proportion  of  their 
power  and  duty  to  "  establish  justice."  As  the 
laws  now  stand  and  are  construed  by  them- 
selves, their  own  judges  have  no  legal  protec- 
tion for  life,  liberty,  property,  or  reputation,  in 
the  performance  of  their  official  duties  in  their 
own  circuits;  their  citizens  are  said  to  be  shot 
down  in  their  own  dwellings,  almost  daily  in 
some  places,  with  impunity,  and  without  any 
provision  of  judicial  remedy ;  and  even  their 
executive  officers,  civil  and  military,  soldiers, 
agents,  servants,  and  citizens  of  all  grades,  are 
held  liable  to  be  politically  disfranchised,  per- 
secuted, and  outlawed,  by  the  agents  of  subor- 
dinate local  governments,  for  fidelity  and  loyalty 
to  the  Union;  and  all  this  not  only  without  trial 
and  punishment,  but  without  even  a  liability  to 
the  legal  right  of  complaint  and  judicial  exami- 
nation under  the  national  authority. 

§  566.  Chancellor  Kent,  in  commenting  on  the 
case  last  cited,  says,  "  The  admiralty  jurisdiction 
of  the  Federal  courts  is  derived  expressly  from 
the  Constitution;  and  criminal  cases  belonging 
to  that  jurisdiction  by  the  common  law,  and  by 
the  law  of  nations,  might  have  been  supposed  to 
be  cognizable  in  the  admiralty  courts,  without 
any  statute  authority.  If  the  common  law  be  a 
rule  of  decision  in  the  exercise  of  the  lawful 
jurisdiction  of  the  Federal  courts,  why  ought  it 
not  to  apply  to  criminal  as  well  as  to  civil  cases, 


486  THE  JUDICIAL  POWERS. 

and  upon  the  same  principle,  when  jurisdiction 
is  clearly  vested?" 

§  567.  What  he  says  of  the  admiralty  juris- 
diction is  equally  true  of  all  the  other  jurisdic- 
tion of  the  Federal  courts,  and  his  pungent 
question,  mutatis  mutandis,  equally  applicable  to 
all  other  cases  coming  within  it.  It  will  be  diffi- 
cult to  give  a  satisfactory  answer  to  that  ques- 
tion. If  the  courts  should  take  the  jurisdiction 
thus  conferred,  without  further  legislation,  they 
"  would,"  he  continues,  "  of  course,  in  the  de- 
scription, definition,  prosecution,  and  punishment 
of  the  offence,  be  bound  to  follow  those  general 
principles  and  usages  which  are  not  repugnant 
to  the  Constitution  and  laws  of  the  United 
States,  and  which  constitute  the  common  law  of 
the  land,  and  form  the  basis  of  all  American 
jurisprudence." l 

§  568.  In  the  case  of  Robinson  v.  Campbell,2 
the  Court  say,  that  w  the  remedies  in  the  courts 
of  the  United  States  are  to  be  at  common  law 
or  in  equity,  .  .  .  according  to  the  principles  of 
common  law  and  equity,  as  distinguished  and 
defined  in  that  country  from  which  we  derive 
our  knowledge  of  those  principles."  The  juris- 
diction of  all  cases,  civil  and  criminal,  at  com- 
mon law  and  equity,  coming  within  the  judicial 
power  of  the  United  States,  is  contained  in  the 
same  grant;  and  the  same  principles  ought  to 
govern  its  exercise.  It  may  be  hoped,  that, 

i  1  Kent's  Com.,  320.  2  3  Wheat.  Rep.,  212. 


THE  JUDICIAL  POWERS.  487 

under  better  auspices,  a  more  liberal  construc- 
tion of  the  judicial  power  than  has  heretofore 
been  given  may  yet  ultimately  prevail,  for  the 
establishment  of  "justice,"  and  the  security  of 
"  the  blessings  of  liberty  "  "  to  ourselves  and  our 
posterity."  Cases  arising  under  "the  laws  of  the 
United  States,"  have  been  substantially  restricted 
to  the  narrow  limits  of  the  legislative  Acts  of 
Congress,  as  though  the  nation  knew,  and  the 
Constitution  recognized,  no  other  law. 


CHAPTEE    XXIX. 

THE   STATES. 

§  569.  THE  Constitution  having  been  ordained 
and  established  by  the  people  of  the  United 
States,  for  themselves  and  their  posterity,  as  the 
supreme  law  for  the  whole  land  and  every  part 
thereof,  and  made  fully  adequate  to  the  preser- 
vation and  perpetuation  of  the  Union,  —  that  is, 
to  its  own  preservation  and  defence,  —  and  to 
provide  for  all  the  other  exigencies  of  government 
specially  mentioned  therein;  and  having  author- 
ized and  required  the  diiferent  departments  of 
its  government  to  make,  apply,  and  execute 
"  all  laws  necessary  and  proper  "  for  the  accom- 
plishment of  those  purposes, — it  follows  inevita- 
bly, that  there  can  be  no  other  supreme  law  or 
independent  sovereignty  within  its  domain.  The 
subdivisions  actually  existing,  or  recognized  and 
authorized  by  the  Constitution,  are  States,  Ter- 
ritories, governmental  district,  fortresses,  dock- 
yards, &c. ;  over  all  of  which,  as  component  parts 
of  the  United  States,  the  Constitution  extends 
equally. 

[488] 


THE   STATES.  489 

§  570.  But  the  right  of  citizens  to  participate 
in  the  government  by  the  elective  franchise,  is 
reserved  exclusively  to  those  who  are  also  citi- 
zens of  some  particular  State,  in  distinction  from 
those  who  belong  to  other  parts  of  the  country. 
This  was  not  because  all  those  parts  were  ex- 
pected to  become  States,  for  some  of  them  never 
could,  consistently  with  the  purpose  for  which 
they  were  held;  nor  because  the  citizens,  as 
such,  had  not  equal  rights  with  all  others:  but 
because  the  Territories,  which  alone  were  capable 
of  ever  becoming  States,  had  neither  the  popu- 
lation nor  the  organization  necessary  to  enable 
them  to  perform  the  duties,  or  exercise  the  privi- 
leges, of  States ;  and  it  was  provided,  that,  when 
they  were  so,  they  might  be  admitted  thereto 
under  the  Constitution. 

§  571.  The  original  States  were  admitted,  by 
name,  to  a  participation  in  the  government  by  an 
express  provision  of  the  Constitution  itself,  if 
they  chose  to  accept  it,  by  a  vote  of  their  people 
adopting  that  instrument.  They  were  not  com- 
pelled to  perform  the  duties  of  States,  without 
the  voluntary  consent  of  the  people ;  neither 
were  they  absolved  from  their  relations  to  the 
nation  or  its  government,  whether  they  chose 
to  participate  therein  or  not.  The  Territories, 
also,  under  proper  circumstances,  had  the  same 
right,  and  the  same  freedom  from  compulsion, 
by  solemn  compact1  with  the  old  government, 

1  Ordinance  of  1787. 


490  THE   STATES. 

x 

which  the  new  government  was  required  t<T 
fil,1  though  the  appropriateness  of  the  circum- 
stances must  be  submitted  to  the  discretion  of 
Congress.2  It  is  obvious  that  a  popular  govern- 
ment, —  a  government  by  the  people,  —  a  repub- 
lican government,  in  fact,  cannot  be  sustained  in 
a  State  entirely  by  external  agency.  If  a  com- 
petent portion  of  the  people  are  not  capable, 
morally,  intellectually,  and  physically,  to  admin- 
ister such  a  government  under  the  Constitution, 
the  necessary  consequence  is,  that,  as  they  must 
be  governed,  they  must  all  be  subjects,  and  not 
participants. 

§  572.  This  view  of  the  subject  attracted  early 
attention,  when  the  Constitution  was  before  the 
people  for  their  adoption.  Nine  States  were  re- 
quired to  put  the  government  in  operation,  and 
eleven  actually  did  so.  It  became  a  prominent 
inquiry  among  the  opponents,  what  would  be 
their  condition  in  a  dissenting  minority  ?  and 
the  friends  of  the  Constitution  refused  to  discuss 
it,  because,  they  said,  it  was  a  delicate  question. 
But  why  was  it  a  delicate  question?  It  might 
soon  become  practical,  and,  if  it  did,  would  be 
very  important.  It  was  delicate  in  reference  to 
the  pending  action.  Their  object  was  to  induce 
every  State  voluntarily  to  adopt  it;  and  to  an- 
nounce, beforehand,  what  would  be  the  conse- 
quences of  a  refusal,  might  be  construed  into  a 
threat,  and  so  obstruct  the  attainment  of  the 

1  Article  VI.,  section  1.  2  Article  V.,  section  3. 


THE   STATES.  491 

desired  object.     Therefore,  our  fathers  refused 
to  discuss  the  question  hypothetically. 

§  573.  Rhode  Island  was  not  even  represented 
in  the  Convention,  and,  with  North-Carolina, 
refused,  till  after  the  government  went  into  ope- 
ration, to  participate  in  it.  There  is  little  room 
for  doubt,  that  New  York  and  Yirginia  would 
have  done  the  same,  if,  by  their  refusal,  they 
could  have  defeated  the  measure.1  But  they 
hesitated  to  be  left  in  that  position.  Both  Rhode 
Island  and  North  Carolina  were  component  parts 
of  the  nation,  and  had  been  from  the  first  for- 
mation of  the  Union  in  1774;  and  no  practical 
statesman  will  admit  for  a  moment  that  they 
could  have  been  permitted,  by  a  permanent  re- 
fusaly1  to  take  part  in  the  new  government,  to 
constitute  themselves  independent  foreign  na- 
tions in  the  heart  of  the  Republic.  They  must 
necessarily  submit  to  the  government  of  the 
country,  whether  they  participated  in  it  or  not. 
This  rendered  the  question,  in  the  beginning,  an 
extremely  delicate  one  for  the  friends  of  the 
Constitution,  though  the  obvious  answer  to  it 
had  doubtless  a  commanding  influence  in  the 
end.  It  will  have  a  similar  influence  in  the  future, 
if  there  is  virtue  enough  in  the  government  and 
people  to  remain  firm  and  faithful  to  themselves 
and  to  the  Constitution  of  their  adoption. 

1  It  is  true,  that  the  fact  that  New  Hampshire,  the  ninth  State,  had 
adopted  the  Constitution  five  days  before,  was  not  positively  known  in 
Virginia  at  the  moment  of  tilting  the  final  vote  ;  but  it  was  known  that 
such  a  result  was  not  doubtful. 


492  THE   STATES. 


§  574.  In  this  manner  the  original  States,  hav- 
ing local  governments  already  established  under 
the  auspices  of  the  United  States,  came  under  the 
Constitution,  by  the  legal  and  voluntaiy  action 
of  the  people  adopting  it,  and  thereby  annulling 
every  thing  in  their  own  institutions  and  laws 
incompatible  with  it.  Future  States  should  be 
received  in  a  similar  manner,  whether  formed 
from  unorganized  territory  or  from  States  dis- 
organized by  rebellion,  —  with  this  difference, 
that  as  in  this  last  case  there  is  no  existing  local 
government  through  which  the  will  of  the  peo- 
ple can  be  lawfully  expressed  and  certified,  it 
becomes  proper,  if  not  essential,  that  preliminary 
steps  for  that  purpose  should  be  authorized  by 
the  general  government.  The  idea  of  a  State, 
whether  under  the  Constitution  or  outside,  in- 
volves the  necessity  of  territory,  population,  and 
government,  —  all  equally  and  absolutely  essen- 
tial. The  first  two  may  be  said  to  constitute  the 
body,  and  the  last  the  head,  which  is  as  neces- 
sary to  the  body  politic  as  it  is  to  the  natural 
body;  for  in  either  case,  if  the  head  is  off,  the 
body  is  dead. 

§  575.  In  regard  to  population  and  territory, 
for  a  State  in  the  Union,  no  qualifications  are 
mentioned ;  even  proximity  or  juxtaposition  is 
not  expressly  prescribed.  But  in  regard  to  gov- 
ernment the  qualifications  are  specially  pre- 
scribed; so  that  a  State  in  thefUnion  may  as  well 
exist  without  territory  or  population,  as  without 


THE   STATES.  493 

government;  and  without  any  government,  as 
well  as  with  a  monocracy  or  any  other  different 
from  what  the  Constitution  requires.  A  com- 
munity without  this  cannot  be  entitled  to  the 
privileges  and  immunities  of  a  State,  or  exercise 
the  rights  or  perform  the  duties  of  a  State  in  the 
Union;  not  because  they  are  not  in  the  Union, 
but  because  they  are  not  a  State,  and  cannot 
be,  till  they  have  a  constitutional  government, 
legally  approved,  and  voluntarily  adopted  and 
administered  by  the  people,  or  so  many  of  them 
as  the  government  may  adjudge  it  safe  to  recog- 
nize and  trust  as  such.  Until  so  admitted  to  a 
participation  in  the  government,  every  part  of 
the  national  domain  is  subject  to  the  exclusive 
legislation  of  Congress,  guided  by  the  principles 
of  the  Constitution,  and  controlled  by  the  pur- 
poses expressly  announced  in  its  introductory 
and  enacting  clause. 

§  576.  Adequate  provision  was  made  for  the 
voluntary  admission  of  every  State  that  had 
been  previously  authorized  or  recognized  by  the 
Revolutionary  government,  and  for  the  future 
formation  and  admission  of  similar  organizations 
under  the  authority  of  Congress.  But  no  pro- 
vision was  made  for  any  independent  organiza- 
tion within  the  United  States.  Even  the  Indian 
tribes,  though  excused  from  the  duties  of  citizens 
while  retaining  their  tribal  relations,  are  subject 
to  the  government,  and  have  been  so  treated, 
sometimes  with  great  injustice.  Still  they  must 


494:  THE   STATES. 

be  governed;  and,  if  they  will  not  govern  them- 
selves in  accordance  with  the  peace  and  welfare 
of  the  citizens  of  the  United  States,  they  never- 
theless, from  necessity,  will  be  governed,  as  they 
must,  or  exterminated.  If  any  others  are  in- 
clined to  place  themselves  in  the  same  predica- 
ment, by  making  themselves  savages,  they  — 
"may  profit  by  the  example."1 

§  577.  When  the  people  of  the  original  States 
adopted  the  Constitution,  they  voluntarily  be- 
came subject  to  it,  with  such  qualification  and 
curtailment  of  their  own,  as  that  instrument, 
and  "  all  laws  necessary  and  proper  for  its  exe- 
cution," might  require.  Those  which  have  been 
or  may  be  admitted  afterwards,  where  the  quali- 
fication -and  curtailment  are  not  superseded,  as 
they  always  should  be,  by  express  limitations  of 
their  own,  are  received  on  the  same  terms,  be- 
cause they  could  not  be  received  without  them. 
In  all  other  respects,  the  original  States  are  in 
the  same  relative  position  to  the  United  States 
as  they  occupied  when  the  Constitution  was 
formed.  The  subsequent  States  are  just  where 
the  Constitution  placed  them,  at  their  own  re- 
quest. 

§  578.  This  brings  us  to  the  inquiry,  "What 
was  legally  the  political  condition  of  individual 
States  in  the  Union,  when  the  Constitution  was 
made? 

This  may  be  answered  generally,  by  saying  it 

1  Patrick  Henry. 


THE   STATES.  495 

was  then  just  what  it  was  when  those  States,  as 
Colonies,  were  first  organized  under  the  Union. 
The  division  of  the  British  empire  rendered  the 
people  of  the  American  Union  just  as  much  a 
sovereign  and  independent  nation  as  it  left  the 
people  of  the  European  portion.  The  only  differ- 
ence was,  that  they  had  the  government,  and  we 
had  none.  They  retained  it  because  it  acted  with 
them,  and  we  rejected  it  because  it  acted  against 
us.  By  the  cotemporaneous  series  of  acts  by 
which  the  British  empire  was  divided,  the  Amer- 
ican people  adopted  and  established  for  this 
country  such  an  informal,  unlimited,  and  extem- 
poraneous government  as  suited  the  exigencies 
of  the  time,  by  a  general  representation  of  the 
people,  chosen  on  Revolutionary  principles,  with- 
out previous  law  or  regard  to  time,  place,  or 
circumstance,  other  than  the  mere  facility  of 
congregation,  regardless  of  corporate  rights,  or 


minor  local  divisions,  ^o  delegate  of  the  first 
Congress  pretended  to  an  authority  to  represent 
or  bind  any  organized  general  convention  of  the 
body  politic  of  a  whole  colony.  No  such  con- 
vention existed  in  any  colony,  or  could  have  been 
formed  without  the  agency  of  a  previous  gov- 
ernment. The  king's  governors  called  only  for 
a  partial  representation,  carefully  excluding,  when 
they  could,  those  places  from  which  they  ex- 
pected representatives  they  did  not  want.  So 
that,  if  the  legally  chosen  delegates  had  revolted 
in  a  body  and  united  in  a  convention,  the  mass 


496  THE   STATES. 

of  the  people  would  have  been   incompetently 
represented. 

§  579.  The  Continental  Congress,  however, 
supplied,  as  well  as  it  might,  the  place  of  the 
royal  government  in  England;  but  the  people 
soon  felt  the  want  of  those  domestic  institu- 
tions they  had  enjoyed  by  virtue  of  the  king's 
charters,  though  they  granted  no  power  to  do 
any  thing  inconsistent  or  incompatible  with  the 
"  laws  of  this  our  realm  of  England."  To  satisfy 
this  want,  the  "United  Colonies,  in  Congress 
assembled,"  authorized  and  "  recommended  to  the 
Provincial  Convention  of  New  Hampshire  .  .  . 
to  call  a  full  and  free  representation  of  the  peo- 
ple; and  that  the  Representatives,  if  they  think 
it  necessary,  establish  such  a  form  of  govern- 
ment as  in  their  judgment  will  best  produce 
the  happiness  of  the  people,  and  most  effectually 
secure  peace  and  good  order  in  the  province, 
during  the  continuance  of  the  present  dispute 
between  Great  Britain  and  the  Colonies."1  Such 
resolutions  carried  with  them  no  other  authority 
than  the  adoption  of  temporary  substitutes  for 
the  extinct  colonial  or  provincial  governments, 
and  equally  subordinate  and  subsidiary  to  the 
general  government  and  laws  of  the  country, 
whatever  they  might  be.  Some  of  them  were 
merely  a  continuation,  under  the  Congress,  of  the 
former  colonial  governments,  and  none  of  them 

1  Resolve  of  Nov.  3, 1775,  respecting  a  government  for  New  Harap 
shire. 


THE   STATES.  497 

contained  any  more  independence  or  sovereignty 
than  the  colonial  charters. 

§  580.  "When  peace  became  more  hopeless, 
and  some  local  governments  were  still  not  prop- 
erly organized,  Congress  "recommended  to  the 
respective  assemblies  and  conventions  [not  the 
people]  of  the  Colonies,  .  .  .  when  no  govern- 
ment sufficient  for  the  exigencies  of  their  affairs 
hath  been  already  established,  to  adopt  such 
government  as  shall,  in  the  opinion  of  the  rep- 
resentatives of  the  people,  best  conduce  to  the 
happiness  and  safety  of  their  constituents  in  par- 
ticular, and  America  in  general."  That  this  did 
not  confer  or  recognize  any  independence,  sov- 
ereignty, or  supremacy  on  the  respective  colo- 
nies, is  manifest  from  several  considerations. 
1.  Its  language  does  not  purport  to  do  any  such 
thing.  2.  The  United  Colonies,  at  that  time 
(May,  1776) ,  had  nothing  of  the  kind  themselves 
to  concede  to  any  body.  They  even  nominally, 
for  two  months  longer,  admitted  their  own  subor- 
dination, and  did  not  proclaim  their  final  sepa- 
ration and  independence  of  the  government  of 
Great  Britain.  3.  It  obviously  recognizes  the 
integrity  of  the  whole,  and  of  course  the  sec- 
tionality  and  dependence  of  the  particular  parts. 
4.  That  the  individual  colonies  themselves  so 
understood  it,  is  manifest  from  the  fact,  that 
every  government  so  formed  recognized,  in  some 
form,  this  position,  as  a  part  only  of  the  country, 
and  subordinate  to  its  government.  This  posi- 

32 


498  THE   STATES. 

\ 

tion  was  never  changed  by  the  people  of  the 
United  States,  and  could  not  be  changed  by  any 
other  power. 

§  581.  In  the  year  1781,  seven  years  after  the 
formation  of  the  Union,  and  five  years  after 
the  final  declaration  of  the  independence  and 
sovereignty  of  the  nation,  these  local  govern- 
ments adopted  among  themselves  a  treaty  or 
league,  called  a  Confederation, — a  sort  of  "Holy 
Alliance,"  —  in  which  neither  the  people  of  the 
United  States  nor  the  people  of  the  individual 
States  were  named  as  parties,  or  ever  became 
such  by  any  formal  act.  By  this  alliance  they  as- 
sumed that  each  State  had,  individually,  complete 
"  sovereignty,  freedom,  and  independence ; "  and 
that "  the  United  States  in  Congress  assembled," 
under  whose  government  they  were  constituted, 
organized,  and  defended,  had  no  "  power,  juris- 
diction, or  right,  which  is  not  by  this  Confed- 
eration expressly  delegated"  to  them,  —  thus 
making  themselves  supreme,  and  the  general 
government  subordinate,  and  dependent  in  all 
things  upon  the  local  legislatures.  "  The  thing 
framed  said  to  him  that  framed  it,  he  had  no 
understanding."  It  is  manifest  that  no  such 
procedure  as  this  could  have  any  tendency  to 
change  the  legal  relation  between  the  people  of 
the  United  States  or  their  government,  and  the 
local  governments  they  had  invited  and  allowed 
to  be  organized  within  and  under  their  jurisdic- 
tion. Their  rights  and  duties,  as  the  legitimate 


THE   STATES.  499 

successors  and  inheritors  of  the  national  sove- 
reignty, with  those  of  the  government  they  then 
had  or  any  other  they  might  afterwards  form, 
remained  precisely  the  same  as  though  the  State 
legislatures  had  not  confederated.  Such  a  com- 
bination could  neither  increase  their  own  powers, 
nor  diminish  those  of  the  United  States. 

§  582.  Though  the  league  was  of  no  validity, 
as  against  the  people  of  the  United  States  or 
their  government,  yet,  as  the  delegates  in  Con- 
gress had  usually  been  members  of  the  State 
governments,  were  elected  and  paid  by  them, 
and  not  unfrequently  in  sympathy  with  them, 
they  conformed  to  it,  as  far'  as  possible,  till  its 
unfitness  for  their  use  was  fully  demonstrated. 
So  far  as  it  respected  the  only  parties  to  it,  — 
the  State  legislatures,  —  there  is  no  doubt  the 
treaty  was  a  valid  contract,  there  being  then  no 
law  against  it.  "What  each  one  bound  itself  to, 
with  respect  to  the  others,  it  could  not  rightfully 
depart  from.  This  league  undertook  to  make  a 
distribution  of  all  governmental  powers.  What 
the  parties  assigned  to  themselves  or  each  other 
is  of  no  consequence,  because  of  no  authority. 
But  what  they  agreed  among  themselves  did  not 
belong  to  them,  or  arty  of  them,  but  did  belong 
to  the  United  States,  and  bound  themselves  to 
each  other  that  ijone  of  them  should  claim  or 
exercise,  they  could  not  afterwards  assume,  ipsis 
judicibus,  as  rightfully  belonging  to  them,  and 
so  "  reserved  "  to  them  by  the  Constitution,  even 


500  THE  STATES. 

if  any  of  such  powers  had  been  vested  in  them 
prior  to  that  contract.  This  excludes  from  any 
pretence  of  reservation  to  the  State  governments, 
all  the  powers  abjured  by  them,  or  assigned  to 
the  United  States  by  the  Confederation.  None 
of  them  had,  in  fact,  ever  belonged  exclusively 
to  the  State  governments ;  but,  if  they  had,  they 
could  not  any  longer,  without  a  violation  of  that 
solemn  compact. 

§  583,  Among  the  rights  accorded  to  the 
United  States  by  this  league,  were  the  follow- 
ing: 1.  To  have  a  Congress  for  the  "manage- 
ment of  the  general  interests  of  the  United 
States."  2.  Freedom  of  debate  for  the  members 
of  Congress,  and  exemption  from  arrests  and  im- 
prisonments during  its  session.  3.  All  expenses 
for  the  "common  defence  or  general  welfare," 
shall  be  defrayed  out  of  a  common  treasury, 
supplied  by  the  States  as  apportioned  to  them. 
4.  Determining  on  peace  or  war.  5.  Sending  and 
receiving  ambassadors.  6.  Treaties  and  alliances. 
7.  Rules  for  captures  on  land  or  water.  8.  Dis- 
tribution of  prizes.  9.  Granting  letters  of 
marque  and  reprisal  in  times  of  peace.  10.  Trial 
of  piracies  and  felonies  on  the  high  seas.  11. 
Courts  for  appeals  in  a41  cases  of  captures. 
12.  Determining  all  disputes  between  two  or 
more  States.  13.  All  controversies  concerning 
right  of  soil  claimed  under  grants  from  two  or 
more  States.  14.  To  regulate  the  alloy  and 
value  of  coin.  15.  Fixing  the  standard  of 


THE  STATES.  501 

weights  and  measures.  16.  Regulating  trade 
with  the  Indians.  17.  Establishing  post-offices. 
18.  Appointing  officers  for  and  regulating  the 
land  and  naval  forces.  19.  "  To  ascertain  the 
necessary  sums  of  money  to  be  raised  for  the  ser- 
vice of  the  United  States,  and  to  appropriate  and 
apply  the  same;  to  borrow  money  or  emit  bills 
on  the  credit  of  the  United  States;  to  build  and 
equip  a  navy;  to  agree  upon  the  number  of  land 
forces,  and  to  make  requisitions  from  each  State 
for  its  quota."  20.  Every  State  shall  abide  by 
the  determination  of  the  United  States  in  Con- 
gress assembled,  on  all  questions  hereby  sub- 
mitted to  them. 

§  584.  By  the  same  treaty  of  Confederation, 
the  State  legislatures  laid  themselves  under  sun- 
dry restrictions  and  disabilities,  from  which  they 
could  not  be  absolved  without  the  consent  of 
the  other  parties :  — 

1.  ~No  State  shall  send  any  embassy  to,  or  re- 
ceive any  embassy  from,  or  enter  into  any  con- 
ference, .agreement,  alliance,  or  treaty  with,  any 
king,  prince,  or  state. 

2.  No  two  or  more  States  shall  enter  into  any 
treaty,  confederation,  or   alliance  whatever  be- 
tween them. 

3.  No  State  shall  lay  any  imposts  or  duties 
which   may   interfere  with   any   stipulations    in 
treaties. 

4.  No  vessels  of  war  shall  be  kept  up  in  time 
of  peace  by  any  State. 


502  THE   STATES. 

5.  Nor  shall  any  body  of  forces  be  kept  up  in 
any  State  in  time  of  peace. 

6.  j$o  State  shall  gpant  commissions  to  any 
ships  or  vessels  of  war,  or  letters  of  marque  and 
reprisal. 

.  §  585.  These,  and  many  other  powers  of  the 
general  government  and  disabilities  of  the  local 
legislatures,  were  not  new,  but  had  been  prac- 
tised, or  well  understood,  from  the  foundation 
of  the  American  Union.  But  they  were  intro- 
duced into  this  league  of  confederation  for  the 
double  purpose  of  being  claimed  as  grants  or 
concessions  of  the  State  governments,  and  of 
being  rendered,  in  a  great  measure,  nugatory, 
as  they  were,  by  exceptions,  qualifications,  and 
limitations,  that  destroyed  all  efficiency  in  the 
government,  and  brought  it  to  a  speedy  stand. 
Though  by  these  operations  the  legal  status  of 
the  people  of  the  United  States  or  their  govern- 
ment had  not,  in  respect  to  the  local  jurisdic- 
tions, been  actually  changed;  yet  it  was  found 
necessary,  in  order  to  preserve  the  Union  and 
prevent  a  total  abolition  of  the  government,  to 
resort  to  an  entirely  new  organization.  This 
was  most  providentially  effected  by  the  people, 
in  peace,  with  the  active  co-operation  and  assist- 
ance of  all  the  State  legislatures,  and  the  organs 
of  their  alliance. 

§  586.  Up  to  this  time,  though  the  legal  rela- 
tions of  the  American  Union,  both  internal  and 
external,  remained  unchanged,  they  were  actually 


THE  .STATES. 


unwritten,  practically  undefined,  and  essentially 
unlimited,  except  by  the  principles  of  interna- 
tional and  natural  law.  They  made  little  pro- 
gress in  defining  or  systematizing  them  during 
the  War  of  Independence  ;  and  the  abortive 
league  of  confederation  among  the  subordinate 
governments  made  none  afterwards.  So  the 
Constitution  itself  was  the  result  of  the  first  and 
only  attempt  of  the  American  people  to  define 
and  limit,  by  a  written  fundamental  law,  the 
rights  and  duties  of  their  own  government,  in 
relation  to  every  thing  within  and  every  thing 
without  its  jurisdiction. 

§  587.  In  respect  to  all  within  the  United 
States  or  any  part  thereof,  whether  individuals, 
communities,  corporations,  or  governments,  they 
have  spread  over  them  the  broad  mantle  of 
the  Constitution,  subjecting  the  whole,  equally 
and  universally,  to  the  supreme  law  of  the  land. 
All  that  it  says  particularly  the  States  shall  not 
do,  and  all  it  says  more  generally  shall  not  be 
done,  it  is  the  business  of  the  government  to 
take  care  that  they  are  not  done.  Any  one  of 
the  least  of  these  disabilities  is  a  perfect  negation 
of  all  claims  to  independence,  nationality,  or  sov- 
ereignty. Several  of  them  are  aime4  directly  at 
those  attributes. 

§  588.  "  No  State  shall  enter  into  any  treaty, 
alliance,  or  confederation;  .  .  .  enter  into  any 
agreement  or  compact  with  another  State  or 
with  a  foreign  power,  or  engage  in  a  war,"  &c. 


504  THE   STATES. 

A  sovereign  and  independent  State  prohibited 
from  quarrelling  with  its  neighbours,  or  even 
making  peace !  I  They  might  as  well  be  required 
to  practise  "justice  and  domestic  tranquillity," — 
to  stay  at  home  and  mind  their  own  business. 
Yet  this  class  of  prohibitions  deprives  the  States 
of  no  power  they  ever  possessed.  We  have  seen 
that  the  State  governments  themselves,  in  their 
confederation  league,  most  elaborately  disclaimed 
the  whole  of  them.  Besides  these  disabilities 
going  precisely  to  the  annihilation  of  any  claim 
to  a  status  among  nations,  as  independent  sover- 
eignties by  international  law,  the  Constitution 
imposes  many  others  interfering  more  directly 
with  the  internal  administration  of  interests 
purely  local.  Some  of  these  are  particular,  and 
apply  directly  and  exclusively  to  the  States; 
while  others  are  general,  in  the  nature  of  a  dec- 
laration of  rights,  and  operate  not  only  as  a 
restraint  on  the  people  of  the  States  and  their 
own  local  governments,  but  also  on  the  govern- 
ment and  people  of  the  whole  nation. 


CHAPTEE   XXX. 

STATE  DISABILITIES. 

§  589.  THE  disabilities  of  States,  in  respect  to 
the  domestic  affairs  of  their  own  localities,  spe- 
cially imposed  by  the  Constitution,  are  mostly 
found  in  the  10th  section  of  Article  I.  "No 
State  shall  .  .  .  grant  letters  of  marque  and  re- 
prisal." This  prohibition  is  made  on  account  of 
the  danger  to  which  the  exercise  of  such  a  power 
would  expose  the  peace  of  the  country,  and  the 
international  relations  of  their  government.  w!Nb 
State  shall  .  .  .  coin  money."  As  this  power 
was  expressly  given  to  Congress,  the  restriction 
prevents  any  interference  by  States.  "  ~No  State 
shall  .  .  .  emit  bills  of  credit."  As  a  State  can- 
not make  money,  or  say  what  shall  be  money,  so 
neither  can  they  make  or  authorize  any  substitute 
for  money.  A  bill  of  credit  is  a  promise  to  pay 
money.  "In  its  enlarged,  and  perhaps  literal, 
sense,  the  term  ?  bill  of  credit,'  in  the  Constitu- 
tion, may  comprehend  any  instrument  by  which  a 
State  engages  to  pay  money  at  a  future  day; 
thus  including  a  certificate  given  for  borrowed 

[505] 


506  STATE   DISABILITIES. 

money."1  The  whole  duty  of  regulating  the 
currency,  as  an  instrument  of  commerce  and  a 
part  of  the  commercial  power,  is  imposed  upon 
Congress;  and  the  States  are  expressly,  as  well 
as  impliedly,  excluded  from  it.  What  they  can- 
not do  themselves,  of  course  they  cannot  author- 
ize others  to  do  for  them.  Thus  far  is  clear. 

§  590.  But  what  is  its  bearing  upon  other 
assumed  powers  of  the  State  governments?  If 
the  States  may  contract  debt,  receive  credit,  and 
especially  if  they  may  borrow  money,  they  must 
promise  to  pay;  that  is,  in  some  some  form  or 
by  some  token,  issue  or  "  emit  a  bill  of  credit." 
This  the  owner  may  sell  or  transfer  to  his  neigh- 
bor, and  thus  it  may  go  into  circulation,  as  a 
substitute  for  the  money  it  promises.  If  it  is 
valid  evidence  of  a  legal  claim  against  the  State 
in  the  hands  of  the  owner,  such  evidence  can  be 
multiplied  to  any  extent,  and  the  prohibition  be 
rendered  thereby  utterly  void.  If  such  evidence, 
as  being  issued  in  direct  violation  of  the  Consti- 
tution, is  inadmissible,  and  can  prove  nothing, 
then  the  States  can  have  no  credit  for  borrowed 
money  or  any  thing  that  requires  that  kind  of 
proof.  This  condition  of  the  law  would  afford 
the  best  security  for  the  United  States  against 
a  liability  for  the  debts  of  repudiating  States. 
State  debts,  lawfully  contracted  and  proved,  must 
be  paid,  because  the  States  are  able  to  pay  them. 
If  they  may  lawfully  contract  debts,  by  borrow- 

1  4  Peters'  Rep.,  431,  Craig  v.  Missouri. 


STATE   DISABILITIES.  507 

ing  money  or  otherwise,  ad  libitum,  the  gov- 
ernment of  the  United  States  is  bound  by  the 
Constitution  to  see  them  paid,  because  it  was 
ordained  on  purpose  to  "  establish  justice." 

§  591.  It  is  true  that  individual  citizens  of 
domestic  or  foreign  States  cannot  sue  a  State 
of  which  they  are  not  citizens.  But  citizens  of 
the  United  States,  who  are  not  at  the  same  time 
citizens  of  a  State  other  than  the  one  prosecuted, 
may  do  so;  or  at  least  they  are  not  within  the 
terms  of  the  prohibition  in  the  eleventh  Amend- 
ment. This  includes  citizens  of  the  same  State, 
and  citizens  of  the  Territories,  of  the  District  of 
Columbia,  and  all  other  places  not  belonging  to 
any  particular  State.  More  than  this,  domestic 
or  foreign  States  may  become  the  owners  of  .such 
debts,  or  assume  the  enforcement  of  them  on  be- 
half of  their  own  injured  citizens,  and  would  have 
a  right  to  demand  the  assistance  of  the  Supreme 
Court  for  the  purpose.  Foreign  states,  indeed, 
might  decline  to  ask  or  rely  on  any  such  assist- 
ance, but  undertake  the  direct  enforcement  them- 
selves, in  the  manner  lately  resorted  to  by  France 
against  Mexico.1  In  such  a  case,  as  the  United 
States  would  be  bound  to  protect  the  defaulting 
State  "  against  invasion,"  they  would  have  only 
the  alternative  of  paying  the  just  debt,  or  assum- 

1  "Laws  in  violation  of  private  contracts,  as  they  amount  to  ag- 
gressions on  the  rights  of  those  States  whose  citizens  are  injured  by 
them,  may  be  considered  as  a  probable  source  of  hostility."  —  "  The  denial 
or  perversion  of  justice  by  sentences  of  courts,  is  with  reason  classed 
among  the  just  causes  of  war."  —  Federalist,  Nos.  7  and  80,  by  Hamilton. 


508  STATE  DISABILITIES. 

ing  an  unjust  war  in  favor  of  the  wrongdoer; 
which  would  be  much  worse  in  principle,  and 
more  injurious  in  interest. 

§  592.  "!N"o  State  shall  .  .  .  make  any  thing 
but  gold  and  silver  coin  a  tender  in  payment  of 
debts."  To  make  any  thing  a  legal  tender,  is  to 
require  it  to  be  received  as  money,  where  money 
is  due ;  and  this  is  only  in  another  form  to  say 
what  shall  be  money,  —  that  is,  to  £oin  it.  As 
the  States  cannot  do  this,  so  neither  can  they 
dispense  with  it,  nor  make  any  substitute  for  it. 
Congress  are  not  restricted,  in  making,  adopting, 
and  fixing  the  value  of  money,  to  the  use  of  any 
particular  description  of  materials ;  but  the  States, 
in  making  tender  laws,  are  restricted  to  the  coin 
or  authorized  money  of  the  United  States,  and  to 
that  portion  of  it  manufactured  from  gold  and 
silver. 

§  593.  "No  State  shall  .  .  .  pass  any  .  .  . 
law  impairing  the  obligation  of  contracts."  Mr. 
Madison  says  of  such  laws,  with  others  in  the 
same  connection,  they  "  are  contrary  to  the  first 
principles  of  the  social  compact,  and  to  every 
principle  of  sound  legislation."1  The  prohibition 
is  taken  substantially  from  the  Ordinance  of 
1787,  as  drawn  by  Mr.  Dane,  where  the  words 
are  "  interfere  with  or  affect  private  contracts." 
The  change  is  significant.  "Interfere  with  or 
affect"  might  extend  to  any  act  that  should 
touch  or  relate  to  this  contract.  But  to  "im- 

1  Federalist,  No.  44. 


STATE   DISABILITIES.  509 

pair  the  obligation,"  means  only  to  weaken  the 
force  or  efficacy  of  the  contract.  Leaving  out 
the  qualifying  word  "private,"  makes  the  pro- 
hibition apply  to  all  contracts.  Thus  the  Su- 
preme Court  say,1  "  The  words  are  general,  and 
are  applicable  to  contracts  of  ever}7  description." 
They  have  been  judicially  applied  to  contracts 
between  individuals,  between  States,  and  between 
States  and  individuals;  to  State  grants  of  every 
kind, —  of  land,  easements,  privileges,  and  fran- 
chises; and  for  all  sorts  of  purposes  and  uses, 
whether  mercantile,  agricultural,  manufacturing, 
educational,  or  eleemosynary.  In  fact,  to  almost 
every  conceivable  contract  in  the  power  of  the 
State  or  people  to  make,  except  their  own  Con- 
stitutions. 

§  594.  To  prevent  the  violation  of  these,  to 
the  detriment  of  individual  rights,  by  the  State 
itself,  or  by  any  department  of  its  government, 
the  courts  of  the  United  States  have  never  been 
called  upon  to  interfere,  under  the  authority  of 
this  restriction.  Civil  rights  of  great  importance 
and  value  are  acquired,  vested,  and  held  under 
these  constitutions,  and  are  afterwards  taken 
away,  lost,  or  impaired  by  adverse  unconstitu- 
tional State  action,  under  the  forms  of  law, 
without  restraint  or  redress.  Why  an  appeal 
should  not  be  made  to  the  supreme  judicial 
power  of  the  nation  for  redress  under  this  pro- 
vision, is  not  readily  perceived.  That  State 

1  6  Cranch's  Kep.,  137. 


510  STATE  DISABILITIES. 

/ 

constitutions  are  contracts  in  their  nature,  will 
hardly  be  denied.  They  are  usually  so  called 
on  their  face.  Chief  Justice  Jay  said,1  "Every 
State  constitution  is  a  compact,  made  by  and 
between  the  citizens  to  govern  themselves  in  a 
certain  manner."  The  constitution  of  Massa- 
chusetts asserts  that  "the  body  politic  ...  is 
a  social  compact,  by  which  the  whole  people  cov- 
enants with  each  citizen,  and  each  citizen  with 
the  whole  people,  that  all  shall  be  governed  by 
certain  laws."  They  therefore  "  ordain  and  es- 
tablish" .  .  .  the  constitution,  which  they  call 
"  an  original,  explicit,  and  solemn  compact  with 
each  other."  All  the  State  constitutions  pur- 
port expressly  to  be  founded  on  the  consent, 
agreement,  or  compact  of  the  people,  and  are 
thus  made  contracts  in  form  as  well  as  in  sub- 
stance. If  they  are  contracts  at  all,  they  must 
be  contracts  of  some  description;  and  if  the 
prohibition  of  our  Constitution  is  w  applicable  to 
contracts  of  every  description"  of  what  descrip- 
tion must  those  contracts  be,  to  which  it  does  not 
apply? 

§  595.  "  Whenever  a  law  is  in  its  own  nature 
a  contract,  and  absolute  rights  have  vested  un- 
der it,  a  repeal  of  that  law  cannot  divest  those 
rights,  or  annihilate  or  impair  the  title  so  ac- 
quired." A  constitution  is  a  law,  and  if  an 
authorized  repeal  of  it  by  the  whole  people  can- 
not impair  rights  held  under  it,  much  less  can 

i  2  Dallas's  Rep.,  419. 


STATE   DISABILITIES.  511 

an  unauthorized  violation  of  it  by  any  depart- 
ment of  its  government.  It  is  difficult  to  see 
why  a  private  vested  right,  when  attempted  to 
be  impaired  in  this  manner,  should  not  be  pro- 
tected under  the  authority  of  this  prohibition  by 
the  general  government,  whose  duty  it  is  to  exe- 
cute the  Constitution.  It  is  no  answer  to  say, 
even  if  it  could  be  proved,  that  such  a  result 
was  not  in  contemplation  when  the  Constitution 
was  formed.  "  Although  a  rare  or  particular 
case  may  not  of  itself  be  of  sufficient  magnitude 
to  induce  the  establishment  of  a  constitutional 
rule,  yet  it  must  be  governed  by  that  rule  when 
established,  unless  some  plain  and  strong  reason 
for  excluding  it  can  be  given."  A  constitutional 
bill  of  rights  is  a  grant,  recognition,  or  assurance 
to  individuals,  of  the  rights  therein  contained; 
and,  like  any  other  grant,  is  a  contract  executed, 
and  an  extinguishment  of  the  right  of  the 
grantor,  and  implies  a  contract  not  to  re-assert 
that  right.1  The  Constitution  says  that  a  State 
shall  not  impair  the  obligation  of  contracts,  and 
the  Supreme  Court  have  authority  to  enforce  the 
prohibition. 

§  596.  "No  State  shall  .  .  .  pass  any  bill  of 
attainder,  ex  post  facto  law,  ...  or  grant  any 
title  of  nobility."  These  are  repetitions  of  what 
had  been  more  generally  prohibited  before,  and 
have  already  been  sufficiently  remarked  upon. 
w  No  State  shall  .  .  .  lay  any  imposts  or  duties 

1  See  3  Story's  Com.,  258;  6  Cranch's  Rep.,  135;  1  Kent's  Com.,  392. 


512  STATE  DISABILITIES- 

on  imports  or  exports ; "  or  "  lay  any  duty  of 
tonnage ; "  or  "  keep  troops  or  ships  of  war  in 
time  of  peace."  It  is  added  in  regard  to  these, 
and  some  others,  "  without  the  consent  of  Con- 
gress ; "  but  this  neither  increases  nor  diminishes 
the  force  of  the  restriction;  for  whatever  Con- 
gress may  lawfully  do  directly,  on  any  of  these 
subjects,  they  may  doubtless  do  indirectly,  that  is, 
consent  to  their  being  done  by  the  State  legisla- 
tures, if  they  so  choose. 

§  597.  Besides  the  foregoing  particular  and 
express  restrictions  on  the  States  or  their  gov- 
ernments, the  Constitution  contains  many  others, 
relating  to  matters  purely  internal,  applying  more 
indirectly,  perhaps,  and  not  exclusively,  to  the 
States,  but  still  equally  including  them  and  all 
others  subject  to  the  Constitution.  Whatever 
the  Constitution  contains  is  the  supreme  law  of 
the  land,  and  binds  everybody  that  is  under  the 
law.  This  class  of  disabilities  extends  to  all 
general  inhibitions  of  acts  in  derogation  of  rec- 
ognized rights,  and  all  negations  or  affirmations 
in  the  nature  of  a  declaration  of  rights.  Saying 
that  a  thing  shall  not  be  done,  that  is  otherwise 
within  the  scope  of  legislative  power,  State  or 
national,  operates  essentially  a  constitutional  dis- 
ability on  all  governments  and  people  within  its 
jurisdiction. 

§  598.  Instances  under  this  head  include  such 
subjects  as  the  following :  The  privilege  of  mem- 
bers of  Congress  from  arrest ;  the  suspension 


STATE  DISABILITIES.  513 

of  the  writ  of  habeas  corpus;  the  compensation 
of  the  President;  the  trial  of  all  crimes  by  jury; 
the  requirement  of  two  witnesses  for  conviction 
of  treason ;  attainder  of  treason  not  to  work  cor- 
ruption of  blood  or  forfeiture  after  the  death  of 
the  traitor;  the  faith  and  credit  to  be  given  to 
public  acts  and  records  of  other  States;  the 
privileges  and  immunities  of  citizenship ;  the 
extradition  of  fugitives  from  justice;  the  dis- 
charge of  fugitives  from  labor  ;  the  support  of 
republican  government ;  the  invalidity  of  any 
State  law  contrary  to  "  the  law  of  the  land." 

§  599.  Many  subjects  are  similarly  restricted 
in  the  constitutional  amendments  of  which  the 
following  are  examples:  The  free  exercise  of 
religion ;  freedom  of  speech ;  freedom  of  the 
press;  the  right  of  the  people  to  assemble  and 
petition  the  government;  the  right  of  the  people 
to  keep  and  bear  arms;  the  right  of  the  peo- 
ple to  be  secure  in  their  persons,  houses,  papers, 
and  effects;  the  legality  of  warrants  upon  prob- 
able cause,  supported  by  oath,  &c.;  indictments 
only  by  a  grand  jury;  only  once  in  jeopardy  of 
life  or  limb,  for  the  same  offence;  no  one  com- 
pelled to  be  a  witness,  in  a  criminal  case,  against 
himself,  nor  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law;  nor  shall  private 
property  be  taken  for  public  use  without  just 
compensation ;  the  right  of  trial  by  jury  in  suits 
at  common  law  involving  over  twenty  dollars. 
All  these  and  some  other  provisions  are  in  the 

33 


514  STATE  DISABILITIES. 

nature  of  a  bill  of  rights,  sanctioned  by  the  Con- 
stitution, and  are,  by  necessary  implication,  so 
many  restrictions  on  all  power,  wherever  lodged. 
A  few  only  are  particularly  applied  to  Congress; 
but  it  is  not  to  be  supposed  that  this  was  intended 
to  be  exclusive,  or  that  the  people  of  the  United 
States  meant  to  have  their  rights  exposed  to 
depredations  from  others,  after  protecting  them 
against  their  own  government.  The  acknowl- 
edged constitutional  rights  of  the  people  must 
be  protected  by  the  government,  not  only  against 
their  own  wrongdoing,  but  against  any  other 
agency  in  the  land.  The  government  has  as 
much  right  to  put  a  citizen  to  the  rack  in  order 
to  compel  him  "  to  be  a  witness  against  himself," 
as  it  has  to  permit  a  village  magistrate  to  do  the 
same  thing,  under  the  pretended  authority  of  a 
State  law.  And  so  of  every  other  prohibition  in 
the  catalogue. 

§  600.  These  are  the  disabilities  and  restric- 
tions imposed  on  the  States,  by  the  terms  of  the 
Constitution.  They  were  always  in  view  during 
the  early  discussions  of  the  relative  rights  of 
State  and  nation,  when  it  was  well  understood 
and  recognized,  that  the  Constitution  left  the 
States  with  all  the  legal  rights  they  then  had, 
except  those  that  were  altered  by  that  instru- 
ment. It  was  known  that  no  new  powers  of 
government  were  conferred  on  the  States,  and 
that  all  its  legislative  powers  were  vested  in 
Congress.  It  was  also  perfectly  and  equally 


STATE  DISABILITIES.  515 

well  known  to  all  concerned,  that  the  whole  ob- 
ject of  the  American  people,  in  ordaining  and 
establishing  the  Constitution,  was  to  constitute  a 
firm  national  government,  adequate  to  all  the  ex- 
igencies of  a  government  for  the  United  States, 
w  in  order  to  form  a  more  perfect  Union,  estab- 
lish justice,  insure  domestic  tranquillity,  provide 
for  the  common  defence,  promote  the  general 
welfare,  and  secure  the  blessings  of  liberty "  to 
all  the  people  of  the  United  States  and  their  pos- 
terity. All  this  was  true,  well  understood,  and 
plainly  and  permanently  written  on  parchment. 
But  the  future  was  unseen,  and  necessarily  left 
out  of  the  account.  It  could  not  have  been  fore- 
seen, that  a  system  of  false  doctrine  and  antag- 
onistic practice,  leading  to,  and  terminating  in, 
treason,  rebellion,  and  war,  would  be  adopted  by 
a  portion  of  the  subordinate  States,  the  result  of 
which  might  be  the  total  annihilation,  or  any 
thing  short  of  it,  of  all  those  States. 

§  601.  The  avowed  purposes  of  the  people  of 
the  United  States,  for  which  the  Constitution 
was  established,  they  had  made  it  the  duty  of 
their  government  to  accomplish,  by  all  the  means 
placed  at  their  disposal.  These  means  were,  the 
making  and  executing  of  "  all  laws  necessary 
and  proper  "  for  that  end.  "Whatever  laws  may 
be  properly  made  by  one  department,  must  be 
lawfully  executed  by  the  other  departments  ; 
and  whatsoever  the  government,  or  any  depart- 
ment or  officer  thereof,  may  lawfully  do  or  com- 


516  STATE  DISABILITIES. 

mand  for  any  of  those  purposes,  no  man  may 
lawfully  undo  or  counteract.  This  constitutes 
the  sweeping  and  all-pervading  restriction  and 
disability  of  every  citizen  and  subject  within  the 
Union,  the  States  inclusive.  This  is  the  su- 
premacy of  the  Constitution,  and,  with  the  laws 
and  treaties  of  the  United  States,  forms  the  para- 
mount "  law  of  the  land,"  binding  all  officers  and 
judges,  States,  corporations,  and  people,  "  any 
thing  in  the  constitution  or  laws  of  any  State 
to  the  contrary  notwithstanding." 


VIVAT    KESPUBLICA. 


INDEX. 


[Art.,  §,  cl.,  refer  to  the  Article,  Section,  and  Clause  of  the  Constitution.  Am.  refers 
to  the  Amendments  of  the  Constitution.  Figures  alone,  without  prefix,  indicate  the 
page  of  the  work  ] 


ACTS,  records,  and  judicial  proceed- 
ings, faith  and  credit  of,  Art.  4, 
§1;  371. 
proof  and  effect  of,  ib.;  371. 

Adjournment  of  the  two  Houses,  Art. 

1,  §5,  cl.  4;  170. 

of  Congress  by  the  President  in 
case,  Art.  2,  §3;  451. 

Admiralty  and  maritime  jurisdiction, 
Art.  3,  §  2,  cl.  1 ;  457,  463. 

Aliens  and  slaves,  not  citizens,  55,  60, 
150,  158,  160,  162. 

Ambassadors,   ministers,   and  consuls 

appointed,  Art.  2,  §2,  cl.  2;  451i 
received,  Art.  2,  §  3;  451. 
within  the  judicial  power,  Art.  3, 
§2,  cl.  2,  3;    462. 

Ambiguity  of  the  word  "  free,"  Art.  1, 
§2,  cl.  3;  156. 

Amendments  of  the  Constitution,  how 

made,  Art.  5 ;  390. 
restricted,  428. 
in  nature  of  bill  of  rights,  392,  415, 

513. 

First  Amendment,  285,  396.  Sec- 
ond, 145,  286,  396.  Third,  397. 
Fourth,  397.  Fifth,  133,  145,  395. 
Sixth,  145,  397.  Seventh,  145, 
397.  Eighth,  397.  Ninth,  397. 
Tenth,  68,  146,  '397,  499.  Elev- 
enth, 398.  Twelfth,  171,  398. 
Thirteenth,  164,  399.  Fourteenth, 
401. 

Ames,  Fisher,  139. 

Anderson  v.  Dunn,  277,  447. 

Anti-slavery  petitions,  134. 
end  of,  139. 

Appointment,  452. 

Apportionment  of  representatives  and 
direct  taxes,  Art.  1,  §  2,  cl.  3 ;  156, 
182,208,411. 


Apportionment  of  representatives  and 
direct  taxes,  rule  of,  Art.  1,  §  9; 
208,  411;  Am.  14th;  405. 
predicated  on  the  census,  236. 
Appropriations  made  by  law,  Art.  1, 

§9;  182,  214,  285,  291,426. 
for  armies,  not   longer    than  two 

years,  Art.  1,  §  8,  cl.  12;  414. 
Armies,  raise  and  support,  Art.  1,  §  8, 

cl.  12;  350. 

British,  not  to  be  supplied,  97. 
Arms,  right  to  keep  and  bear,  Am.  2d ; 

59,  145,  286. 

Articles  of  Confederation,  32,  54,  103, 
Art.  6,  §  1;    101,  103,  110,  500. 
—  See   "  League,"   "  Confedera- 
tion." 
Arts  and  science,  to  promote,  Art.  1, 

§8,  cl.  8;  82,  356. 
Assemble  and  petition,  right  to,  Am. 

1st;  286. 
Attainder,  bill  of,  prohibited,  Art.  1, 

§9,  cl.  3;  §10,  cl.  1;  284,  419. 
of  treason  not  to  work  after  the 
death  of  the  traitor,  Art.  3,  §  3, 
cl.  2 ;  423. 

Attributes  of  nationality,  assumed  be- 
fore the  Declaration,  93,  98. 
asserted  by  the  Declaration,  48. 
re-affirmed  by  the  Constitution,  49. 
Authors   and    inventors,   their    rights 
recognized,  Art.  1,  §  8,  cl.  8 ;  82. 


BAIL  and  fines,  not  excessive,  Am. 

8th;  397. 

Bank,  national,  294. 
Bankruptcy,  laws  of,  Art.  1,  §  8,  cl.  4; 

336. 

State  laws  of,  70. 
Basis   of   representation,  Art.   1,   §  2, 

[517] 


518 


INDEX. 


cl.  3;   Am.  14th,  §2;    150,  156, 
182,  236,  240,  406. 
Basis  of  representation,  proceedings  in 

the  Convention,  208. 
Bates,  Edward,  Attorney-General,  55, 

57. 
Bayard,  James  A.,  on  impeachment, 

169. 

Bible  commends  slavery,  135. 
Bills  of  attainder  prohibited,  Art.  1, 

§9,  cl.  3;  §10,  cl.  1;  284,  419. 
of  rights,  393,  504,  511,  514. 
amendments  in  the  nature  of,  392, 

415. 
of  credit  by  States  prohibited,  Art. 

1,  §  10,  cl.  1;  97,  189,505. 
passed  both  Houses,  presented  to 
the  President,  Art.  1,  §  7,  cl.  2 ; 
172. 

for  raising  revenue,  originate  in  the 
House  of  Representatives,  Art.  1, 
§7,  cl.  1;  167.  , 

Blackstone,  on  sovereignty,  47. 

bankruptcy,  336. 
Blount,  William,  impeachment  of,  168, 

437. 
Borrow  money,  Art.  1,  §  8,  cl.  2;  189. 

power  unlimited,  290,  324. 
Boston,   British  troops  in,  to  be  at- 
tacked, 98. 

may  be  destroyed,  98. 
Bound  to  service,  Art.  4,  §  2 ;  159,  163, 

213. 
for  term  of  years,  Art.  1,  §  2 ;  159, 

162,  213. 
legally,  163. 
free,  156,  159,  162. 
not  slave,  160. 

Brearley,  of  New  Jersey,  chairman  of 
the  Omnibus  Committee,  118, 
314. 

Brilliant  et  al.  v.  United  States,  351. 
British  empire  divided  by  our  Revolu- 
tion, 48,  50,  91,  98,  495. 
troops  not  supplied,  97. 
Brown  v.  the  United  States,  439. 
Buller,  Mr.  Justice,  on  preamble,  86. 
Burlamaqui,  on  sovereignty,  47. 
Bynkershoek,  on  war,  440. 


CABOT,  George,  262. 

Calder  v.  Bull,  180,  284. 

Calhoun,  John  C.,  141. 

Capitation  and  other  direct  taxes,  how 

laid,  Art.  1,  §  9,  cl.  4;  208. 
Captures    on    land    or    water,    rules 

concerning,  Art.   1,   §  8,  cl.  11; 

850. 

Case  of  Dartmouth  College,  396. 
Census  to  be  taken  every  ten  years, 

Art.  1,  §2,  cl.  3;  53,  158,  235. 
Indians  not  taxed,  236. 
who  besides  excluded,  237. 
Chase,  Samuel,  Mr.  Justice,  284,  437. 


Chief.  Justice  to  preside  in  trial  of  the 
President  on  impeachment,  Art.  1, 
§  3,  cl.  6 ;  167. 
Chisholm  v.  Georgia,  115. 
Citizens,  members  of  the  nation,  who 
are,  47,  49  53,  55,  150,  157,  199; 
Am.  14th,  §  1 ;  201,  401.- 
who  are  not,  aliens,  slaves,  and  In- 
dians not  taxed,  57,  60,  61,  160. 
rights  of,  57;  Art.  4,  §  2,  cl.  1;  114, 

155,  185,  198,  201. 
in  every  State,  184,  202,  401. 
Citizenship  by  birth,  Art.  2,  §  1 ;  201. 
by  naturalization,  Art.  1,  §  8,  cl.  4 ; 

159. 

in  1776;  53,54,96,  159. 
includes  the  right  of  suffrage,  Am.. 
14th;  Art.  1,  §2,  cl.  1;  59,  185, 
403. 
Civil  government    petitioned    for    by 

Colonies,  94. 
officers  liable  to  impeachment,  Art. 

2,  §4;  168. 

officers,  State  and  national,  sworn 
to  the  Constitution,  Art.  6,  §  3 ; 
191. 

Claims  of  States  or  nation  not  preju- 
diced, Art.  4,  §  3,  cl.  2 ;  230. 
Cohens  v.  Virginia,  78,  248,  321,  360. 
Coin  and  value  money,  Art.   1,  §  8, 

cl.  5 ;  337. 
no  State  shall,  Art.  1,  §  10,  cl.  1 ; 

189,  505. 
foreign,  ib  ;  337. 
current,  338. 
gold  and  silver  coin,  Art.  1,  §10, 

cl.  1 ;  338. 

Coke,  Lord  Chief  Justice,  on  pream- 
ble, 86. 

on  bankruptcy,  336. 
Commander-in-chief  and  other  officers 

appointed  in  1775;  97. 
Commerce  regulated  before  the  Decla- 
ration, 91,  93,  98. 
regulation  of,  Art.  1,  §  8,  cl.  3;  207, 

326. 

regulation  of,  not  to  favor  one  State 
over  another,  Art.  1,  §  9.  cl.  5 ; 
413. 

Commercial  powers,  326. 
exclusive,  330,  342. 
extent  of,  327. 

include  traffic  and  intercourse,  326. 

Committee  of  Detail,  33,  208,  314,  364. 

of  Revision,  33,  36,  118,  212,  364. 

Omnibus,  Mr.  Sherman's,  3J3,  118. 

Common  defence,   a  purpose    of  the 

government,    first    or    enacting 

clause,  31,  40,  118,  121,  286,  426. 

a  power  of  Congress,  Art.  1,  §  8, 

cl.  1;  118,  124,295,810. 
unlimited,  120. 
provide  for,  120,  124,  312. 
and  general  welfare  came  into  the 
Constitution,  40,  118. 


INDEX. 


519 


Common  law  and  equity,  cases  in, 
Art.  3,  §  2,  el.  1 ;  284,  346,  458.  — 
See  "Judicial  Power." 

suits  tried  by  jury,  Am.  7th;  397. 

facts    re-examined    according    to, 

Am.  7th;  388,  397. 

Confederation  of  1781,  Art.  6,  §  1 ;  32, 
101,  103. 

a  treaty  or  league  of  States,  37,  54, 
103,  110,  498. 

United  States  not  a  party,  104. 

could  not  increase  their  own  power. 
104. 

or  diminish  that  of  the  Union,  104, 
498. 

defects  of,  90,  106. 

Congress,  how  organized,  Art.  1,  §§  1, 
2,  and  3;  150,  164,  172. 

vested  with  all  legislative  powers 
of  the  Constitution,  Art.  1,  §  1 ; 
172,  175. 

to  make  all  laws  necessary  for  exe- 
cuting it,  Art.  1,  §  8,  cl.  18;  179, 
180,  195. 

powers  general  or  special,  179,  180, 
301. 

powers  general,  when  merely  re- 
sulting from  legislative  duty,  177, 
179,  180,  181. 

powers  special,  when  expressly  as- 
signed to  them,  179,  285. 

General  powers  of,  to  secure  a  rep- 
resentation of  the  people  accord- 
ing to  Art.  1,  §2,  cl.  1,  4;  182. 

apportion  representatives  among 
the  States,  Art.  1,  §  2,  cl.  3 ;  182, 
190. 

authorize  each  House  to  compel 
the  attendance  of  its  members, 
Art.  1,  §5,  cl.  1;  166. 

provide  for  publishing  the  Journals 
of  the  two  Houses,  Art.  1,  §  5,  cl. 
3;  183. 

fix  the  compensation  for  their 
own  services,  Art.  1,  §  6,  cl  1; 
271. 

make  appropriations  of  public  mo- 
ney, Art.  1,  §  9,  cl.  6;  285,  291. 

provide  for  publishing  the  receipts 
and  expenditures,  Art  1,  §  9,  cl. 
6;  183. 

suspend  the  habeas  corpus,  when, 
in  rebellion  or  invasion,  the  public 
safety  requires,  Art.  1,  §  9,  cl.  2 ; 
284. 

fix  the  compensation  of  the  Presi- 
dent, Art.  2,  §  1,  cl.  7;  184. 

fix  the  compensations  of  the  Judges, 
Art.  3,  §1;  184. 

secure  to  citizens  their  privileges  in 
every  State,  Art.  4,  §2,  cl.  1, 
Am.  14th,  §1;  184,  198. 

secure  the  election  of  President  and 
V  ice-President  according  to  Art. 
2  and  Am.  12th;  185. 


Congress,  provide  for  the  extradition 
of  fugitives  from  justice  or  labor, 
Art.  4,  §  2,  cl.  2,  3;  184,  187,  206. 

guarantee  a  republican  government 
to  the  States,  Art.  4,  §4;  184, 
220,  229,  255. 

protect  the  States  against  invasion 
and  violence,  Art.  4,  §  4 ;  190,  229. 

cause  State  Judges  to  be  bound  by 
the  supreme  law,  Art.  6,  §  2;  185, 
190,  232,  395. 

bind  by  oath  all  officers,  State  or 
national,  to  support  the  Constitu- 
tion, Art.  6,  §  3 ;  233. 

discharge  the  debts  and  engage- 
ments of  their  predecessors,  Art. 
6,  §1;  230., 

cause  all  civil  officers,  State  or  na- 
tional, to  support  the  Constitu- 
tion, Art.  6,  §3;  184,  187,  191, 
232,  294. 

execute  the  Constitution  when  rati- 
fied by  nine  States,  Art.  7 ;  234. 

quarter  soldiers  in  private  houses 
in  war,  Am.  3d;  397. 

secure  the  people  against  illegal 
searches  and  warrants,  Art.  4; 
397. 

prevent  criminal  trials  without  ac- 
tion of  a  grand  jury,  Am.  5th; 
395. 

prevent  two  trials  endangering  life 
or  limb,  Am.  5th ;  395. 

prevent  compulsory  evidence  by 
criminal  against  himself,  Am. 
5th;  395. 

prevent  deprivation  of  life,  liberty, 
or  property  without  process  of 
law,  Am.  5th ;  395. 
.  prevent  property  being  taken  for 
public  use  without  compensation, 
Am.  5th;  395. 

secure  the  rights  of  criminals  on 
trial  by  jury,  Am.  6th;  397. 

preserve  trial  by  jury  in  suits  at 
common  law,  for  over  twenty  dol- 
lars, Am.  7th;  388,  397. 

prevent  re-examination  of  facts  oth- 
erwise than  by  common  law,  Am. 
7th;  388,397. 

prevent  the  requirement  of  exces- 
sive- bail  or  fines,  and  cruel  pun- 
ishments, Am.  8th;  397. 

disparage  no  rights,  because  not 
enumerated,  Am.  9th;  397. 

secure  the  reserved  rights  of  the 
States  and  people,  Am.  10th;  397. 

secure  States  against  suits  by  citi- 
zens of  other  States,  domestic  or 
foreign,  Am.  llth;  398. 

Special  powers  of,  assigned  by  ex- 
press provisions  of  the  Constitu- 
tion, 235. 

to'direct  the  taking  of  the  census, 
Art.  1,  §2.  cl.  3;  235. 


520 


INDEX. 


Congress  to  regulate  the  election  of 
Senators  and  Representatives, 
Art.  1,  §  4,  cl.  1 ;  238,  244,  250, 
268. 

to  appoint  the  day  of  their  annual 
session,  Art.  !,"§  4,  cl.  2;  172, 
270. 

to  pass  laws  over  the  President's 
veto,  Art.  1.  §  7,  cl.  2;  172,  271. 

to  lay  and  collect  taxes,  duties,  im- 
posts, and  excises,  Art.  1,  §  8,  cl. 
1;  81,290. 

to  pay  the  debts,  and  provide  for 
the  defence  and  welfare  of  the 
United  States,  ib.,  81,  292,  295, 
312. 

to  borrow  money  on  the  credit  of  the 
United  States,  Art.  1,  §  8,  cl.  2; 
290,  324. 

to  regulate  commerce,  foreign,  do- 
mestic, and  with  Indians,  Art.  1, 
§  8,  cl.  3;  207,326,342. 

to  establish  laws  of  naturalization 
and  bankruptcy,  Art.  1,  §  8,  cl.  4; 
333,  335. 

to  coin  money  and  regulate  its 
value  and  that  of  foreign  coin, 
Art.  1,  §  8,  cl.  5;  337. 

to  fix  the  standard  of  weights  and 
measures,  ib.,  340,  342. 

to  punish  counterfeiting  the  securi- 
ties and  current  coin  of  the  United 
States,  Art.  1,  §  8,  cl.  6;  344. 

to  establish  post-offices  and  post- 
roads,  Art.  1,  §  8,  cl.  7;  342,  346. 

to  promote  science  and  arts  by  se- 
curing the  rights  of  authors  and 
inventors,  ib.,  cl.  8;  82. 

to  constitute  tribunals  inferior  to 
the  Supreme  Court,  Art.  1,  §  8,  cl. 
9 ;  and  Art.  3,  §  1 ;  369. 

to  define  and  punish  offences  on 
the  high  seas  and  against  the 
law  of  nations,  Art.  1,  §  8,  cl.  10; 
344. 

to  declare  war,  grant  letters  of 
marque,  and  regulate  captures, 
Art.  1.  §  8,  cl.  11 ;  349,  352. 

to  raise  and  support  armies  and 
navies,  Art.  1,  §  8,  cl.  12, 13;  350. 

to  regulate  and  govern  the  land  and 
naval  forces,  Art.  1,  §  8,  cl.  14; 
350. 

to  call  forth  the  militia  to  execute 
the  laws,  and  suppress  insurrec- 
tion and  invasion,  ib.,  cl.  15 ;  80, 
350. 

to  organize,  arm,  and  discipline  the 
militia,  and  govern  them  when 
in  service,  Art.  1,  §  8,  cl.  16 ;  350. 

to  legislate  exclusively  over  places 
ceded  or  purchased,  by  consent 
of  State  legislatures  for  govern- 
ment purposes,  Art.  1,  §  8,  cl.  17; 
357. 


Congress  to  make  all  laws  necessary 
for  executing  the  powers  of  the 
government,  Art.  1,  §8,  cl.  18; 
190,  364,  410. 

to  prohibit  or  tax  the  migration  or 
importation  of  persons,  Art.  1, 
§  9,  cl.  1 ;  209,  283. 

to  apportion  capitation  and  other 
direct  taxes  on  the  census,  Art.  1, 
§  9,  cl.  4;  209. 

to  authorize  an  officer  to  accept  any 
present,  emolument,  office,  or  title 
from  a  foreign  State,  Art.  1,  §  9, 
cl.  7;  427. 

to  revise  and  control  State  laws 
laying  duties  on  imports  or  ex- 
ports, Art.  1,  §  10,  cl.  2;  208. 

to  authorize  a  State  duty  of  tonnage 
and  other  acts,  which  would  be 
otherwise  void,  Art.  1,  §  10,  cl. 
2;  427. 

to  determine  the  time  of  choosing 
electors,  and  when  they  shall  vote, 
Art.  2,  §  1,  cl.  4;  368. 

to  declare  what  officer  shall  act  as 
President,  in  case  of  the  removal, 
death,  resignation,  or  inability  of 
the  President  and  Vice-President, 
Art.  2,  §  1,  cl.  6 ;  368. 

to  establish  the  officers,  and  vest  the 
power  of  appointment,  in  case, 
&c.,  Art.  2,  §2,  cl.  2;  369. 

to  make  exceptions  from,  and  regu- 
lations of  the  appellate  jurisdic- 
tion of  the  Supreme  Court,  Art  3, 
§  2,  cl.  2 ;  370,  469. 

to  direct  the  place  of  trial  of  crimes 
not  committed  within  a  State, 
Art.  3,  §  2,  cl.  3;  397. 

to  declare  the  punishment  of  treason, 
Art.  3,  §  3,  cl.  2;  370. 

to  prescribe  the  proof  and  the  effect 
of  acts,  records,  and  judicial  pro- 
ceedings of  States,  Art.  4,  §  1; 
371. 

to  admit  new  States  into  the  Union, 
Art.  4,  §  3,  cl.  1 ;  373. 

to  dispose  of  and  regulate  the  terri- 
tory and  property  of  the  United 
States,  Art.  4,  §  3,  cl.  2 ;  230, 378, 
382. 

to  propose  amendments  to  the  con- 
stitution, Art.  5 ;  390. 

to  call  a  convention  on  application 
of  legislatures  of  two-thirds  of  the 
States,  Art.  5 ;  390. 

to  enforce  the  prohibition  of  slaverv, 
Am.  13th;  401. 

to  secure  and  enforce  the  rights  of 
citizens  of  the  United  States,  Am. 
14th,  §  1 ;  402. 

to  protect  the  rights  of  voters,  Am. 
14th,  §2;  403. 

to  enforce  the  disabilities  of  rebels, 
Am.  14th,  §  3 ;  402. 


INDEX. 


521 


Congress  to  enforce  the  validity  of  the 
public  debt,  Am.  14th,  §  4;  402. 
to  enforce  the  non-payment  of  ille- 
gal claims,  Am.  14th,  §  4;  402. 
Constitution,  ordained  and  established, 

Enacting  Clause,  1,  75. 
adequate  to  all  its  purposes,  72,  77. 
supreme  law,  Art.  6,  §  2;  72,  75,  78. 
"this"  whole  Constitution,  28,31, 

39,  44,  64,  232. 
to  be  executed  by  the  government, 

29,  7'9,  129,  190,  410. 
and  by  the  means  authorized,  83, 

88. 

assigns  no  subject  to  the  sole  man- 
agement of  local  governments,  71. 
on  the  defensive,  43. 
a  necessity  unless  objections  insup- 
erable,   43,    77.  —  See    "  Enact- 
ment." 

construction  of  the,  46,  87,  318. 
•  imposes  no  duty  to  govern,  on  any 

but  its  own  agents,  129. 
interferes  with  State  action  by  ex- 
press   prohibition    or  exclusion, 
341. 

Constitutional  rights  not  abrogated  by 
statute,  State  or  national,  58,  202, 
242. 
Contempt,   punishment    of,    169,    346, 

447. 
Continental  Congress,  power  of,  91,  93, 

96,  98,  103,  495,  503. 
armv,  rules  and  regulations  for,  97. 
officers  of,  97. 

representation  in,  personal,  not  cor- 
porate, 91,  99. 

Contracts  not  impaired  by  State  legis- 
lation, Art.  1,  §  10;  508. 
Convention  direct  Congress  to  execute 

the  Constitution,  29. 
for  proposing  amendments,  Art.  5 ; 

390. 

Copyright,  82,  356. 
Corporate  franchises  lost  by  mis-user  or 

non-user,  or  surrender,  378. 
Courts,  Supreme  and   inferior,  vested 
with  all  the  judicial  powers,  Art. 
3,  §  1 ;  457. 

inferior,  constituted,  370. 
judges  of,  appointed,  Art.  3,  §  1; 

Art..  2,  §  2,  cl.  2 ;  452. 
during  good  behavior,  Art.  3,  §  1 ; 

455. 

compensation,  Art.  3,  §  1;  455. 
jurisdiction  of,  original  and  appel- 
late, Art.  3;  370. 
martial,  353. 
Cox  &  Dick  v.  United  States,  389. 


DANE,  Nathan,  508. 
Dartmouth  College  case,  396. 
Davie,  of  North  Carolina,  265. 
Debtor  and  creditor,  law  of,  387. 


Debts  and  engagements  valid  against 
the  new  government,  Art.  6,  §  1 ; 
230,  291,  385,  426. 

Congress  has  power  to  pay,  Art.  1, 
§  8,  cl.  1;  295,  310,426. 

Congress  has  distinct  and  indepen- 
dent power  to  pay,  317. 

for  rebellion,  insurrection,  or  eman- 
cipation, void,  Am.  14th,  §  4; 
401. 

cannot  be  owed  by  slaves,  215. 
Declaration  of  Rights  in  1774;  93,  224, 
404. 

of  citizenship  in  1776;  96. 

of  Independence,  49,  98. 

of  Independence  the  law  of  the 
land,  231. 

of  war,  Art.  1,  §  8,cl.  11 ;  349,  351. 
Defence,  common  Enacting  Clause,  1 ; 
Art.  1,  §  8,  cl.  1;  118,  292,  295, 
310,  349,  426. 

history  of  this  clause,  40,  118. 

provide  for  the,  120,  312. 

source  of  the  power,  121. 

distinct  and  independent  power. 
317. 

duty  of  the  government,  124. 

duty  of  the  legislative  department, 

124. 

Delegated,  reserved,  and  prohibited 
powers,  Am.  10th,  66,  68,  146, 
397. 

Delegates  to  Congress  became  the  Rep- 
resentatives of  the  United  States, 
91,  99. 
Departments  of  the  government,  Art. 

1,2,  3;  150,430,  455. 
Detail,  Committee  of,  their  Report,  33, 

34,  207,  259,  314,  364. 

on  subjects  connected  with  slavery, 

208. 
followed  the  South-Carolina  Plan, 

35,  208. 

different  from  the  final  Draft,  38. 
Dickinson,  John,  100. 
Direct  taxes,  apportioned  on  popula- 
tion, Art.  1.  §  9,  cl.  4;  156,  182. 
indirect  taxes  uniform,  41,  119. 
Disabilities  of  States,  Art.  1,  §  10;  505, 

515. 

of  aliens  and  slaves,  157. 
Disfranchisement,  268. 

of  Indians  not  taxed,  61. 
District  of  Columbia,  Art.  1,  §  8,  cl.  17; 

357,  378. 
Domestic  tranquillity,  Enacting  Clause, 

1.  31,  116,  229. 
Dred-Scot  case,  142,  219. 
Duties,  Art.  1.  §  8,  cl.  1 ;  40,  290. 
on  exports,  Art.  1,  §§  9,  10;  208. 
on  tonnage,  ib. ;  427. 
on  importations  of  persons,  Art.  1, 

§9;  209,415. 

and  powers  commensurate,  28,  56, 
77,  79,  80,  88,  90,  149. 


522 


INDEX. 


Duties  and  powers  of  government  dis- 
tributed to  the  departments,  175, 
180. 

Dynasty,  change  of,  no  change  of  rights, 
duties,  or  laws,  Art.  4,  6;  230, 
311,  385,  387. 

Dynes  v.  Hoover,  354. 


ELECTIONS  of  Senators  and  Represen- 

tatives  controlled,  Art.  1,  §  4,  cl.  1 ; 

238,  244,  250,  255,  268. 

qualifications  and  returns,  decided 

by  each  House,  Art.  1,  §  5;  166. 

the  power  to  regulate  very  broad, 

239,242,244,250,259 
the  power  to  regulate,  its  discus- 
sion and  extent  of,  260-270. 
Elective  franchise,  Art.  1,   §  2;  Am. 

14th;  59,  185,224,238. 
the  foundation  of  our  government, 

225. 

Electors  of  Representatives   must  be 
citizens  and  residents  in  a  State, 
Art.  1,  §  2 ;  243,  256. 
of  State  Representatives,  the  same 

qualifications,  Art.  1,  §  2;  243. 
of  Senators,  the  State  Legislatures, 

Art.  1,  §  3;  247,  248. 
of  President    and  Vice-President, 
how  chosen,  Art.  2,  §  1 ;  Am.  12th ; 
431,  368. 

of  President  and  Vice-President, 
duties  and  qualifications  of,  ib. ; 
343. 

Ellsworth,  Mr.  Chief  Justice,  77. 
Enactment  of  the  Constitution,  Enact- 
ing Clause,  1,  31,  37,  39,  74. 
history  of  the  clause,  32. 
one  of  the  last  adopted,  42. 
part  of  the  Supreme  law,  32,  75,  84. 
mandatory  ordained  by  the  people, 

32,  38,  74,  86. 
not  a  preamble,  85. 

Encroachment  of   States  on  the  na- 
tional authority,  101,  104,  112. 
Enumerated  powers,  273,  289 . 
Enumeration  of  the  people  every  ten 
years,  Art.  1,  §  2;  53,  235.  —  See 
"  census." 

of  sentences  or  clauses  of  the  Con- 
stitution, an  interpolation,  41. 
of    rights,    no    disparagement    of 

others,  Am.  9th  ;  397. 
Epitome  of  the  Constitution,  the  Enact- 
ing Clause,  1,  31,  44,  78,  87. 
Equality  of  rights,  a  principle  of  re- 
publicanism, 223. 
Establish  justice,  Enacting  Clause,  1, 

40,  113,  143 
Establishment  of  religion,  Am.  1st;  396. 

freedom  of,  Am.  1st;  285,  396. 
Exceptions  from  and  regulations  of  the 
appellate  jurisdiction  of  the  Su- 
preme Court,  Art.  3,  §  2;  370. 


Excessive  bail  or  fines  not  required, 

Am.  8th;  397. 
Exclusive  legislation,  Art.  1,  §  8,  cl. 

17;  68,340,357,360. 
Executive  Department,  Art.  2 ;  430. 
unity  of  the,  Art.  2 ;  430. 
heads  of,  Art.  2,  §  2,  cl.  1,  2;  184. 
power  vested  in  the  President,  Art. 

2,  §  1,  cl.  1 ;  438. 
Expenditures  and  receipts,  published, 

Art.  1,  §  9,  cl.  6 ;  430. 
Exports,  duties  on,  Art.  1,  §§  9, 10 ;  208, 

412. 
Ex  post  facto  law,  not  to  be  passed, 

Art.  1,  §§  9,  10;  284,  419,  422. 
Extradition,  Art.  4,  §  2,  cl.  2,  3;  208. 


FAITH  and  credit  of  State  acts  and 

records,  Art.  4,  §  1 ;  371. 
mode  of  proof  and  effect  of,  ib. 
Farmers    and    Mechanics'    Bank   'v. 

Smith,  396. 

Federalist,  30,  44,  65,  79,  93,  106,  108, 
110,  119,  122,  131,  144,  224,  238, 
272,  276,  364. 
its  character,  44. 
its  purpose  defensive,  44. 
Felony  on  the  high  seas,  Art.  1,  §  8,  cl. 

10;  344. 
not  privileged  from  arrest,  Art.  1, 

§  6;  167. 

person  charged  with  to  be  deliv- 
ered up,  Art.  4,  §  2,  cl.  2 ;  184. 
Fessenden,  William  P.,  national  law, 

345. 

Financial  powers,  289,  310. 
Fines  and  bail  not  excessive,  Am.  8th ; 

397. 

Fletcher  v.  Peck,  180.  419. 
Forfeiture  of  rights,  155,  378,  404, 423. 
Forts,  magazines,  arsenals,  &c.(  Art.  1, 

§  8,  cl.  17 ;  357,  378. 
exclusive  legislation  of,  ib. ;  357. 
purchased  with    consent    of  State 
legislatures,  Art.  1,  §  8,  cl.  17 ;  358. 
Foundation  of   all    free    government, 
right  of  participation  in  legisla- 
tion, 224.    . 
Fractions  and  units  in  the  census,  Art. 

1,  §2,  cl.  3;  60. 
Franchise  elective,  Art.  1,  §  2,  cl.  1 ;  Am. 

14th,  §  2;  185,224. 
foundation  of  our  government,  225. 
terminates    a    status   incompatible 

with  it,  60,  159. 

corporate  lost  by  mis-user  or  non- 
user,  378. 

Franklin,  Dr.,  his  plan  of  confedera- 
tion, 32,  135. 
Free,  ambiguity  of,  citizens,  56,  156, 

237. 

not  alien,  or  slave,  55, 158. 
persons  and  other  persons,  are  all 
persons,  115,  158,  212,  236. 


INDEX. 


523 


Freedom  of  speech,  of  the  press,  and 
to  assemble  and  petition,  rights, 
Am.  1st;  286. 

Fugitives  from  justice  and  from  labor, 
delivered  up,  Art.  4,  §  2;  115, 
184,  187,  194,  203,  206. 

Fundamental  law,  supreme  every- 
where, 31,  72, 159,  503. 


GENERAL  welfare,  a  purpose  of  the 
Constitution,  Enacting  Clause,  1, 
31,  70,  126. 

history  of  the  clause,  32, 118,  126. 
a  power  of  Congress,  Art.  1,  §  8,  cl. 

1;  118,  130,  291,  312,  426. 
General    and    particular,    relative 

terms,  301,  322. 

Generals  not  excluded  by  particu- 
lars, 148,  282,  323. 
Gerry,  Elbridge,  191. 
Gibbons  v.  Ogden,  124,  283,  327. 
Gold  and  silver  coin,  Art.  1,  §  10,  cl.  1 ; 

339. 

Gorham,  Nathaniel,  of  Mass.,  260. 
Government  ordained  and  established, 

Enacting  Clause,  1,  31. 
restricted,  410. 
firm  national,  109,  129,  444. 
by  whom,  for  whom,  and  why,  1, 

"31. 
adequate  to  its  avowed  purposes, 

77,  129. 
three    departments   of,    organized, 

Art.  1,  2,  3;  28,430,  455. 
to  execute  the  Constitution,  26,  75, 

83,  88,  129,  190,  196. 
'    deficient  power  of,  293. 

republican,  model  of,  224,  228. 
exclusive  power  of,  72,  342. 
subordinate  or  co-ordinate,  65,  67. 
its  power  and  duty  commensurate, 

28,  30,  77,  79,  88,  90. 
temporary  till  1776 ;  98. 
district,  exclusive  jurisdiction  of, 

Art.  1,  §  8,  cl.  17;  72,357. 
succeeds  to  rights,  duties,  and  laws 
of  its  predecessors,  230,  382,  387. 
republican  for  a  State,  what,  and 

how  organized,  228. 
Grayson,  of  Virginia,  on  co-ordinate 

governments,  108. 
Greene,  General  Nathaniel,  353. 
Grotius,  441. 
Guarantee  of   republicanism,  Art.  4, 

§  4;  220,246,255. 
requires  the  regulation  of  suffrage, 

246,  254. 

Gunpowder  manufactured  at  the  pub- 
lic expense,  97. 


HABEAS  CORPUS  not  suspended,  Art.  1, 

§  9;  133,145,415,  417,  428. 
Hamilton,  Alexander,  79,  82,  106,  108, 


120,  122,  130,  144,  186,  261,  272, 
276,  329. 
Hamilton,  Alexander,  his  draft  of  a 

Constitution,  33.  36. 
Hampton  v.  McConnel,  372. 
Held  to  service,  or  •  bound  to  service, 

213,  215. 

Henry,  Patrick,  127,  263,  494. 
High" seas.  Art.  1,  §  8,  cl.  10 ;  344. 
History  of  the  Enacting  Clause,  32. 
clause  regulating  elections,  258. 
common  defence  and  general  wel- 
fare clause,  118,  310. 
provisions  bearing  on  slavery.  206, 

208. 

legislation  respecting  slavery,  134. 
formation  of  the  Confederation,  100. 
House  of  Representatives,  Art.  1,  §  2 ; 

149,  238. 

how  composed,    chosen,   qualified, 
apportioned,  and  vacancies  filled, 
149,  156,  238. 
choose  their  own  officers,  Art.  1,  §  2, 

cl.  5;  166. 

sole  power  of  impeachment,  ib.;  167. 
judge  of  the  election,  qualification, 
and  returns  of  their  own  mem- 
bers, ib. ;  167,  346 
make  their  own  rules,  and  punish 

contempts,  ib. ;  169,  346. 
keep  and  publish  a  journal,  ib. ;  183. 
take  and  record  the  yeas  and  nays, 

ib.;  167. 

adjournment  of  the,  ib. ;  170. 
compensation  of,  Art.  1 ,  §  6 ;  167. 
privileged  from  arrest,  ib. ;  167. 
freedom  of  debate,  ib. ;  286. 
hold  no  office  under  the  government, 

ib  ;  167. 

originate  revenue  bills,  ib. ;  167. 
Houston  v.  Moore,  342. 
Hubbard,  John  H.,  on  general  welfare, 

295. 

Hudson  &  Goodwin,  United  States  v.. 
481. 


IMPEACHMENT,  sole  power  of,  Art.  1, 

§2,  cl.  5;  167,369,434,437. 
sole  trial  of,  Art.  1,  §  3,  cl.  6;  167. 
on  oath,  ib. 

without  jury,  Art.  3,  §  2,  cl.  3;  435. 
Chief  Justice  to  preside,  in  case, 

Art.  1,  §3,  cl.  6;  167,434. 
two-thirds  necessary  to  convict,  ib. ; 

168. 
punishment  limited,  how,  ib. ;  168. 

368,  434. 

convict  liable  at  law,  ib. ;  168. 
no  reprieve  or  pardon  in  cases  of, 

Art.  2,  §  2,  cl.  1 ;  446. 
President,  Vice-President,  and  all 

civil  officers  liable  to,  for  certain 

offences,  Art.  2,  §  4 ;  168. 
and  for  treason,  bribery  and  other 


524 


INDEX. 


high  misdemeanors,  shall  be  re- 
moved, ib. ;  168,  434. 
Impeachment,  who  else  are  liable  to, 
and  for  what  other  offences,  168, 
434,  447. 

Importation  or  migration  of  persons 
not  prohibited  tiH  1808,  Art.  1, 
§  9 ;  208. 

may  be  taxed,  ib. ;  208. 
Imposts  or  duties  on  imports  or  ex- 
ports, Art.  1,  §  10,  cL  2,  and  §  9, 
cl.  5 ;  208. 
Inability  of  the  President,  what  is  it, 

369. 
Independence,  Declaration  of,  49,  98. 

not  repealed,  231. 
Indians  not  taxed,  Art.  1,  §  2,  cl.  3; 

236;  Am.  14th,  §2;  402. 
not  citizens,  because  expressly  ex- 
cluded, 61,  161. 

free,  not  bond,  birthright,  161,  236. 
tribes,  commerce  with,  328. 
Indictment    by    grand    jury,    crimes 

prosecuted  by,  Am.  5th;  133. 
Inferior  tribunals,  Art.  1,  §  8,  cl.  9; 

Art.  3,  §  1 ;  346,  455,  468,  482. 
Injustice  not  sanctioned.  115. 
Insurrections  and  invasions  to  be  sup- 
pressed, Art.  1,  §  8,  cl.  15;   80, 
350. 
States  protected  against,  Art.  4,  §  4 ; 

190,  229. 
International  law,  Art.  1,  §  8,  cl.  10 ; 

114,  231,  344. 
Introduction,  the  Enacting  Clause  of 

the  Constitution;  1,  31,  39,  74. 
its  importance,  32. 
history  of  the  clause,  one  of  the  last 

adopted,  32. 
how  composed,  33. 
part  of  the  supreme  law,  39,  86. 
not  a  preamble,  85,  88. 
how  different  from  prior  forms,  37. 
Iredell,  Mr.  Justice,  265. 


JACKSON,  of  Georgia,  on  slavery,  137. 
threats  of  civil  war  and  murder,  137. 
Andrew,  General,  418. 
Jay,  Mr.  Chief  Justice,  76,  78,  93,  110, 

115,  119,  266. 
Jefferson,  Thomas,  81,  128,  144,  273, 

275,  3_04. 
Johnson,  William  Samuel,  Chairman  of 

the  Committee  of  Revision,  36. 
Johnston,  Governor,  of  North  Carolina, 

265. 
Journal,  each  House  shall  keep  and 

publish,  Art.  1,  §  5,  cl.  3;  183. 
of  the  Convention,  35, 40. 
Judges  appointed,  Art.  2,  §  2 ;  452,  455. 
tenure  of  office  and  compensation, 

Art.  3,  §  1 ;  455. 

State,  bound  by  the  supreme  law, 
Art.  6,  §  2 ;  185, 190,  229,  232, 395. 


Judges  sworn  to  support  the  Constitu- 
tion, Art.  6,  §  3 ;  233. 
Judgment  on  impeachment,  in  certain 
cases,  shall  be  removal,  Art.  2, 
§4;  Art.  1,  §3,  cl.  7;  168. 

in  no  case  extend  further  than  re- 
moval and  disqualification,  ib. : 
168. 

Judicial  power  of  the  United  States 
vested  in  its  courts,  Art.  3,  §  1 ; 
456,  468. 

extends  to  all  cases  under  the  Con- 
stitution, Art.  3,  §  2;  451,  457, 
463,  476. 

original  and  appellate,  how  dis- 
tributed, Art.  3,  §  2,  cl.  2 ;  370, 
468,  469. 

limited,  Am.  llth;  398. 

proceedings,   acts,   and  records  of 

States,  Art.  4,  §  1;  371. 
Judiciary,  Art.  2,  §  1 ;  455. 

co-ordinate  and  co-extensive  with 
the  other  departments,  438,  451, 
456,  461,  467. 

Jurisdiction  co-extensive  with  power, 
304. 

original,  468. 

appellate,  469. 

Jury,  trial  by,  in  criminal  cases,  Art. 
3,  §2,  cl.  3;  397. 

where  and  how,  ib. ;  Am.  6th;  397. 

in  civil  suits  at  common  law,  Am. 
7th ;  388,  397. 

facts  re-examined  according  to  com-  , 

mon  law  only,  Am.  7th;  388. 
Justice,  to  establish,  a  purpose  of  the 
Constitution,  Enacting  Clause,  1, 
31,  113,  143. 

not  violated  by  the  Constitution, 
115,  143. 

the  power  weakened  by  the  eleventh 
Amendment,  398. 

fugitives  from,  Art.  4,  §  2,  cl.  2; 
184,  187,  203. 


KENT,  Mr.  Chancellor,  100,   144,  332, 
419,  431,  441,  451,  461,  481,  485. 
King,  Rufus,  260,  314. 


LABOR,  fugitives  from,  Art.  4,  §  2,  cl. 

3;  115,  184,  187,  194,206. 
Law,  admiraltv  and  maritime,  Art.  3, 

§  2,  cl.  1;  463,  477. 
common  and  equity,  Art.  3,  §  2, 

cl.  1;  Am.  7th,  llth;   345,  387, 

458. 
of  nations,  Art.  1,  §  8,  cl.  10;  114, 

345,  344. 
martial,  Art.  1,  §  8,  cl.  11 ;  349, 351, 

352,  418. 
supreme,   Constitution,    laws,   and 

treaties,  Art.  6,  §  2 ;  30,  69,  232, 

342,  457. 


INDEX. 


525 


Law  not  changed  by  change  of  dynas- 
ty, 230,  385. 

Lawrence,  of  New  York,  188, 193,  294. 
League,    between    State    legislatures, 
the   Confederation   of  1781;  37, 
54,  103. 

United  States  not  a  party,  104. 
could  not  increase  their  own  powers, 

104. 

or  diminish  those  of  the  Union,  104. 
defects  of,  106. 
Lee,  Richard  Henry,  127. 
Legal,  what  violates  no  law,  69,  145, 

146. 

bond,  163. 
Legislation  in  favor  of  slavery,  134- 

143. 
exclusive,  Art.  1,  §  8,  cl.  17;   71, 

340,  357,  360,  384. 
Legislative  Department,  Congress,  Art. 

1,  §  1;  150. 
organization  of,  150. 
powers  of,  general,  175. 
special,  235. 

all  legislative  powers  of  the  govern- 
ment, 180,  286. 
what  are,  176.      » 
how  restricted,  180,  410. 
Letters  of  marque  and  reprisal,  350. 
Liberty,  secure  the  blessings  of,  Enact- 
ing Clause,  1,  31,  133. 
power  abandoned   by  the  govern- 
ment, 134,  138,  141,  143. 
life,  and  property,  security  of,  Am. 

5th,  14th;  94,  133. 

Lincoln,  Abraham,  President,  140, 142. 
Livermore,  Samuel,  139. 
Local  governments,  organized  under 
the  auspices  of  Congress,  52,  64, 
95,  104,  492,  498.—  See  "  State." 
useful  and  indispensable,  65. 
recognized,  subordinate,  66,  67. 
not  supreme  or  exclusive  on  any 

subject,  71. 
Loughborough  v.  Blake,  72,  361,  384. 

McCuLLOCH  v.  Maryland,   292,  342, 

358,  367. 

McFingal  on  war,  440. 
McLean,  Mr.  Justice,  129. 
Madison,  James,  41,  45,  78,  105,  108, 

120,  122,  128,  130,  136,  143,  186, 

188,  193,  240,  260,  263,  286,  296, 

307,  437. 

Manner  of  elections,  250,  252,  260. 
Maritime  law,  Art.  3,  §  2,  cl.  2;  455, 

457,  463. 
Marshall,  Mr.   Chief  Justice,  72,   78, 

1249146,  178,  248,  283,  291,  396, 

459,  462,  365,  367. 
Martial  law,  352,  418,  441,  444. 

courts,  354. 
Martin  v.  Hunter,  186. 
Maryland,  101. 


Mason,  George,  127,  264,  292. 

Jeremiah,  280,  396, 
Massachusetts,  92,  94,  103,  279. 
Maxims,  30. 
Means    and    ends   commensurate,  79, 

147. 
Miflin,  Warner,  his  petition  returned, 

139.. 

Migration  and  importation  of  persons, 
Art.  1,  §  9,  cl.  1;  115,  208,  283, 
414. 

duty  on,  209,  415. 

Militia,  organized,  armed,  disciplined, 
called  out,  and  governed  in  ser- 
vice, 80,  313,  350. 
officered  and  trained,  Art.  1,  §  8,  cl. 

15,16;  67,  414. 

Milligan,  exparte,  case  of,  354. 
Mills  v.  Duryee,  372. 
Misnomer,  88. 
Model  of  republican  government,  224, 

228. 
Mon  droit,  the  principle  of  monocracy, 

223. 
Money,  coined,  valued,  foreign,  Art.  1, 

§  8,  cl.  5;  337. 
no  State  shall  coin,  Art.  1,  §  10,  cl. 

1;  189. 

gold  and  silver,  ib. ;  339. 
appropriation  of,  by  law,  Art.  1,  $  9, 

cl.  6;  285,291,  426. 
Monroe,  James,  127,  132,  273,  298,  303. 
Morris,  Gouyerneur,  152,  259,  314. 
Robert,  266. 


NATION,  the  people  became  tempora- 
rily, in  1774;  48. 
permanently,  in  1776;  49. 
unity  of  the,  48,  50. 
sovereignty  of  a,  49,  69,  90,  94,  99. 
a  perfect  union,  110. 
the  sole  party  to  the  Constitution, 

38,  91. 

Nationality,    attributes    of,    exercised 
before  the  Declaration,  49,  93,  98. 
proclaimed  by  it,  49,  98. 
reaffirmed  in  the  Constitution,  49, 

107. 

Naturalization  in  1776;  53,  56,  96. 
uniform  rule  of,  332. 
power  of,  Art.  1,  §  8,  cl.  4;   332, 

335. 

Navigation,  Art.  1,§  9,  cl.  5;  209,  327. 
Navy  of  the  United  Colonies,  97. 

power  to  provide  and  maintain,  Art. 

1,  §  8,  cl.  13;  350. 
New  Hampshire,  92,  94,  103,  278. 
New  Jersey  Plan,  32,  34,  93,  249. 
New  States  admitted,  Art.  4,  §  3,  cl. 

1;  373,  427. 

how  get  out  of  the  Union,  374. 
New  York,  92,  96,  102,  491. 
Nobility,  title  of,  Art.  1,  §§  9,  10;  285, 
427. 


526 


INDEX. 


Non-importation  in  1774 ;  93. 

of  slaves,  98. 

North  Carolina,  102,  264. 
Nullification  in  1776;  102. 
Numerical  designation  of  clauses  no 
part  of  the  Constitution,  41. 


OATH  of  office,  President's,  Art.  2,  §  1, 

cl.  9;  433. 
national  and  State  officers,  Art.  6, 

§  3;  185,  187,  191,294. 
senator's,  on  court  of  impeachment, 

Art.  1,  §3,  cl.  6;   167. 
Obligation  of  slaves,  163,  215. 
Offences, impeachable,  Art.  2,  §  4;  168,. 

434,  447. 
against  the  law  of  nations,  Art.  1, 

§  8,  cl.  10;  344. 
Officers  of  each  House  appointed,  Art. 

1,  §§  2,3;  166,  169. 
of  the  United  States,  not  members 
of  Congress,  Art.  1,  §  6,  cl.  2 ;  167. 
appointed,  369.  452. 
established  by  law,  452. 
civil,  impeached  and  removed  for 
certain  offences,  Art.  2,  §  4 ;  168. 
of  army  of  1775,  appointed,  97. 
not  to  accept  presents,  &c.,  from 
foreign  governments,  Art.  1,  §  9, 
cl.  7;  427. 

inferior,  how  appointed,  369. 
who  are  they,  370. 
Ogden  v.  Saunders,  147. 
One  people,  a  nation,  49,  53,  93,  98. 
ordain  and   establish,  mandatory, 

74,  77. 

Ordinance  of  1787;  211,231. 
Ordinances  of  the  Revolutionary  gov- 
ernment, 386. 
Organization  of  the  government,  Art. 

1,  2,  3;  149. 

legislative  department,  150. 
House,  150. 
Senate,  164. 
separate  powers,  166. 
executive  department,  Art.  2,  Am. 

12th;  430. 

judicial  department,  Art.  3;  455. 
Omnibus    committee,    Mr.    Brearley, 

chairman,  118,  314. 

Opinion,  public,  theory  of  republican- 
ism, 223. 
Osborn  v.  the  Bank  of   the    United 

States,  292,  461,  462,  466. 
Other  persons  than  free  persons,  Art. 

1,  §2,  cl.  3;  161,212. 
not  aliens  or  slaves,  161,  162. 


PARDONING  power,  Art.  2,  §  2,  cl.  1 ; 

446,  447. 

Parsons,  Mr.  Chief  Justice,  262. 
Particulars  and  generals,  relative  terms, 

301,  322. 


Particulars  and  generals  not  exclusive 

of  each  other,  282,  289,  323. 
Parties  to  the  Constitution,  the  people 
only,  Enacting  Clause,  1,  38,  109. 
political,  pledged  to  sustain  slavery, 

143. 
Patent  right,  Art.  1,  §   8,  cl.  8;   82, 

356. 
Patterson,    Mr.    Justice,    New-Jersey 

Plan,  32,  34. 

Pay  and  provide,  Art.  1,  §  8,  cl.  1 ;  312. 
Pennsylvania,  92. 
People,  citizens,  55,  157.  225. 
who  were  in  1776;  53. 
choose  representatives,  Art.  1,  §  2, 

cl.  1 ;  150,  240. 

successors  to  the  imperial  govern- 
ment, 48.  51,  91,  9H,  496. 
recognized  rights  of,  58,  150. 
sole    parties    to    the   Constitution, 
Enacting  Clause,  1,  38,  47,  49,  53 
109. 

People  v.  Goodwin,  395. 
Persons,  free  and  other,  Art.  1,  §  2,  cl. 
3;  56,  62,  115,  156,  158,  213,  237. 
all,  not  everybody,  237.     e  con,  54. 
bond,  214.      % 
importation  and  migration  of,  Art. 

1,  §  9,  cl.  1;  115. 

held  to  labor  for  years,  Art.  1,  §  2, 
cl.  3;  160,  162,  213. 
under  State  laws,  Art.  4,  §  2, 

cl.  3;  215. 
escaping  to  be   delivered   up, 

ib.;  115. 
Petitions  to  Congress  from  colonies  for 

civil  government,  94. 
against  slavery,  134,  139, 142. 
Pickering,  John,  impeached,  168,  437. 
Pinckney,     Charles.      South-Carolina 

Plan,  32,  106,  207. 
followed  by  the  Committee  of  De- 
tail, 34,  208. 

Charles  Cotesworth,  207,  266. 
Piracies  and  felonies  on  the  high  seas, 

Art.  1,  §  8,  cl.  10;  344. 
Places  of  election,  251. 
Post-office  and  post-roads,  Art.  1,  §  8, 

cl.  7 ;  342,  346. 
established,  and  postmaster-general 

appointed,  in  1775;  97 
Postulate,  Constitution  law,  and  gov- 
ernment to  execute  it,  30. 
Powers,  legislative,  vested  in  Congress, 

Art.  1,  §  1;  181. 
executive,  vested  in  the  President, 

Art.  2,  §  1,  cl.  1 ;  430,  438. 
judicial,  vested  in  the  courts,  Art. 

3,  §  1;  455. 
of  government  not  lost  by  non-user 

or  disclaimer,  127,  143. 
against  slavery  not  to  be  exercised, 

disclaimed,  134,  138,  140,  143. 

purposes  and  duties  commensurate, 

28,  56,  77,  80,  90,  128,  147, 149. 


INDEX. 


527 


Powers,  legislative,  not  delegated  to 
States,  145,  181. 

exclusive,  146,  340,  360. 

distinct  and  independent,  317.' 

and  jurisdiction  co-extensive,  304. 

separate,  of  the  two  Houses,  Art.  1, 
§§  2,  3,  5,  7;  166. 

delegated,  prohibited,  and  reserved, 
Am.  10th ;  68,  146. 

restricted,  must  exist,  283. 
Preamble,  Enacting  Clause  is  not,  1. 

misnomer,  84,  88,  121. 
Presents,  office,  and  title  from  foreign 
governments  prohibited   to  offi- 
cers, Art.  1,  §  9;  427. 
President,  executive  power  vested  in, 
Art.  2,  §  1 ,  cl.  1 ;  430,  438. 

commander-iii-chief,  Art.  2,  §  2,  cl. 
1;  439,441. 

how  chosen,  Art.  2,  Am.  12th;  431. 

official  term,  qualifications,  compen- 
sation, oath  of  office.  Art.  2 ;  433. 

removed  for  certain  offences,  by  im- 
peachment, Art.  2,  §  4 ;  168,  434. 

death,  removal,  resignation,  or  ina- 
bility of,  Art.  2,  §  1,  cl.  6;  368, 
432. 

his  powers  and  duties,  Art.  2,  §§  2, 
3;  438. 

reprieves  and  pardons,  ib. ;  435,  446. 

treaties,  ib. ;  170,  447. 

appointments  to  office,  and  vacan- 
cies, ib. ;  369.  452. 

information  and  recommendations 
to  Congress,  ib. 

convene  either  or  both  houses,  and 
adjourn  them  in  case,  ib. ;  451. 

receive  public  ministers;  ib. ;  451. 

commission  officers,  ib. ;  453. 

take  care  that  the  laws  be  faithfully 
executed,  Art.  2,  §  3;  439,  451. 

restrictions   and  limitations  of  his 

duties,  451. 

Prigg's  case,  187,  194,  218. 
Privateers  authorized,  1775;  97. 
Privileges  and  immunities  of  citizens, 
Art.  4,  §  2;  Am.  14th,  §  1;  184, 
198,  202,  401. 

of  members  from  arrest,  Art.  1,  §  6; 

167. 

Prize  cases,  351. 
Prizes 'and  captures,  Art.  1,  §  8,  cl.  11; 

97,  350. 

Property  of  the  United  States  regu- 
lated or  disposed  of,  Art.  4,  §  3, 
cl.  2;  382. 

private,  taken  for  public  use,  com- 
pensation, Am.  5th;  394,  397. 

slaves  are,  and  not  persons,  57,  60. 
Public  acts,  records,  and  judicial  pro- 
ceedings, Art.  4,  §  1;  371. 

ministers  appointed,  Art.  2,  §  2. 

received,  Art.  2,  §  3;  451. 

within  the  judicial  power,  Art.  3, 
§2;  462. 


Public  opinion,  in  theory  the  govern- 
ment of  republics,  223,  226. 

use,  property  taken  for,  to  be  com- 
pensated,"Am.  5th;  394,  397. 
Publication  of  receipts   and  expendi- 
tures, Art.  1,  §  9,  cl.  6;   183. 
Punishment  of  counterfeiting,  Art.  1, 
§  8,  cl.  6 ;  344. 

piracies  and  felonies  on  high  seas, 
ib.,  cl.  10;  344. 

offences  against  the  law  of  nations, 
ib.;  344. 

treason,  Art.  3,  §  3,  cl.  2 ;  370,  423. 

on  impeachment,  extent  of,  Art.  1, 
§3,  cl.  7;  168, 

must  be  removal  in  certain  cases, 
Art.  2,  §  4;  168. 

of  members,  by  each  house,  Art.  1,. 
§  5,  cl.  2;  166. 

for  contempt  by  each  house,  169, 
346. 

cruel  and  unusual,  prohibited,  Am. 

8th;  397. 

Purposes  of  the  Constitution,  Enacting 
Clause,  1,  37,  39,  90,  147. 

include  a  power,  80,  88, 147. 

first,  union,  91;  second,  justice, 
113;  third,  tranquillity,  116; 
fourth,  defence,  118;  fifth,  welfare, 
126 ;  sixth,  liberty,  133. 


QUALIFICATIONS  of  voters,  State  and 

national,  Art.  1,  §  2;  Am.  14th; 

150, 153,  155,  227,  405. 
identical,  151,  243,  405. 
citizenship  and  residence,  Art.  1, 

§  2,  cl.  1;  153,  227,  243,  256,  261, 

405. 
males,  21  years  of  age,  Am.  14th, 

§  2 ;  405. 
for  the  exercise  of  the  right,  154, 

155,  238,  242,  250,  405. 
of  Representatives,  Art.  1,  §  2,  cl.  2; 

Am.  14th,  §  3;  156,  262,  407. 
Senators,  Art.  1,  §  3,  cl.  3;  Am. 

14th,  §3;  254,407. 
President,  Art.  2,  §  1,  cl.  o;  Am. 

14th,  §  3;  407. 
electors  of  President,  Art.  2,  §   1; 

Am.  14th,  §  3;  407,431. 
the  taxing  power,  Art.  1,  §  8.  cl.  1, 

§  9,  cl.  4,  6;  291,  304. 
Quartering  soldiers  in  private  houses, 

Am.  3d;  397. 
Quorum    for    business    of    the    two 

houses,  a  majority,  Art.  1,  §  5; 

166. 
of  the  house  for  choosing  President, 

Am.  12th,  §  1;  171,  432. 
of  the   Senate  for  choosing  Vice- 

President,  Am.  12th,  §  2;  171. 
less  than  a,  may  do  certain  things, 

Art.  1,  §  5;  166. 


528 


INDEX. 


RANDOLPH,  Edmund,  Virginia  Plan, 

32,  207. 
Ratification  of  nine  States  sufficient, 

Art.  7 ;  234,  490. 
Rebel  Constitution,  109. 

States,  government  of,  428,  432, 445. 

reconstruction  of,  376,  445. 
Receipts  and  expenditures  published, 

Art.  1,  §  9;  183. 
Reconstruction,  377,  428,  445. 
Records,  acts,  and  judicial  proceedings, 

Art.  4,  §  1;  371. 
Regulation  of  commerce,  Art.  1,  §  8,  cl. 

3 ;  §  9,  cl.  5 ;  326. 
elections,  Art.  1,  §  4  ;  166,  241,  243, 

250,  259. 
times,  250. 
places,  251. 
manner,  252. 
the  value  of  money,  Art.  1,  §  8,  cl. 

5;  337. 
captures,  on  land  or  water,  Art.  1, 

§  8,  cl.  11 ;  350. 
land  and  naval  forces,  Art.  1 ;  §  8, 

cl.  14;  350. 
the    appellate   jurisdiction    of   the 

Supreme  Court,  Art.  3,  §  2,  cl.  2; 

469. 

States,  not  to  discharge  from  ser- 
vice, Art.  4,  §2,  cl.  3;  187. 
territory  and  property  of  the  United 
.    States,  Art.  4,  §  "3,   cl.  2;   230, 

378,  382. 
and  exceptions  from  the  appellate 

jurisdiction  of  the  Supreme  Court, 

370. 

Religious  test,  none,  Art.  6,  §  3 ;  429. 
establishment,    freedom,  Am.   1st; 

396. 
Removal  on  impeachment,  Art.  1,  §  3, 

cl.  7;  Art.  2,  §  4;  168,  368. 
Representatives,  chosen  by  the  people. 

citizens  and  residents  of  the  State, 

Art.  1,  §  2,  cl.  1;  150,240. 
every  second  year,  qualifications  of, 

Aft.  1,  §  2,  cl.  2;  Am.  14th,  §  3; 

150,  156. 
number  and  apportionment  of,  Art, 

1,  §  2,  cl.  3;  Am.  14th,  §  2;  182, 

236. 
vacancies  how  filled,  Art.  1,  §  2,  cl. 

4;  156. 
choose  their  own  officers,  Art.  1,  §  2, 

cl.  5 ;  166. 

have  the   sole  power  of  impeach- 
ment, Art.  1,  §  2,  cl.  5 ;  167. 
judge   of  elections,  and  qualifica- 
tions of  their  own  members,  Art. 

1,  §5,  cl.  1;  166. 
a  majority  a  quorum  for  business, 

Art.  1,  §  5.  cl.  1 ;  166. 
a  less  number  may  adjourn  from 

day  to  day,  ib. ;  166. 
and  "  may  be  authorized  to  compel 

attendance,"  ib. ;  166. 


Representatives,  make  their  own  rules, 

punish,  and  expel  members,  ib., 

cl.  2;  166. 
may  adjourn  in  certain  cases,  Art. 

1,  §2,  cl.  4;  170. 

compensation  of,  Art.  1,  §  6;  167. 
freedom  of  debate,  and  privileged 

from  arrest,  ib. ;  167. 
not  appointed  to  any  civil  office,  or 

hold  any  office,  ib.,  Art.  2,  §  1,  cl. 

2;  167. 
originate  revenue  bills,  Art.  1,  §  7 ; 

167. 
duties  in  the  choice  of  President, 

Am.  12th;  171. 
in  revolutionary  Congress,  91. 
keep  and  publish  a  journal,  Art.  1, 

§5;  166. 

yeas  and  nays,  Art.  1,  §§  5,  7;  167. 
Republicanism    of    the    Constitution, 

224. 
of  the  State  governments,  Art.  4, 

§  4;  57,  152,  154,  184,  220,  228, 

246. 

what  is,  221,  224. 
by  external  agency,  490. 
Requisite  in  Art.  1,  §  2,  cl.  1,  refers  no 

more  to  State  than  national  legis- 
lation, 152,  257. 
Reservation,  not  of  what   had    been 

parted  with.  67,  69. 
Resignation,  how  proved,  369. 
Resolution,  order,  or  vote  concurrent, 

same  as  a  bill,  Art.  1,  §  7,  cl.  3 ; 

173. 

of  independence,  53. 
for  State  governments  in  1776 ;  52, 

94,  95. 

of  citizenship  in  1776 ;  53,  55,  96. 
Restrictions  prove  the  power  restricted, 

283;  Art.  1,  §  9;  287,  410,  451. 
Revenue  by  taxation,  290. 

bills  originate  in  the  House  of  Rep- 
resentatives, 167. 
Revision,  Committee  of,  33,  36. 
their  draft,  212. 
Enacting  Clause,  1,  36,  40. 
Revolutionary  authority,  unlimited,  91, 

96. 

supreme  sovereignty,  98. 
Rhode  Island,  491. 
Bights,  constitutional,  not  abrogated  by 

statute,  58,  145,  202,  242. 
of  citizens,  58,  64,  198,  242. 
duties,  and  laws  not  abrogated  by 

the  Constitution,  387. 
to  choose  Representatives,  Art.  1, 

§  2,  cl.  1 ;   185,  489. 
suffrage,  Am.  14th,  §  2 ;  59, 185,  242, 

489. 
habeas  corpus,  Art.  1,  §  9;  59,  133, 

145,  284,  415,  417. 
exemption  from  attainder  and   ex 

post  facto  laws,  Art.  1,  §  9;  284, 

419,  423. 


INDEX. 


529 


Rights,  exemption  from  capitation  and 

direct  taxes,  unless,  Art.  1,  §§  9, 

10;  208. 
exemption    from    prohibited  State 

laws,  Art.  1,  §  10 ;  Art.  6,  §  2 ;  232. 
eligibility  to  the  office  of  President, 

Art.  2j  §  1 ;  433. 
trial  by  jury  for  crimes,  in  the  State 

where  committed,  Art.  3,  §  2,  cl. 

3;  397. 
exemption  from  treason  without  two 

witnesses,  Art.  3,  §  3,  cl.  1 ;  513. 
privileges  of  citizenship  in  every 

State,  Art.  4,  §  2,  cl.  1 ;  184,  202, 

401. 

freedom  of  religion,  Am.  1st. 
speech  and  press,  ib.;  286,  396. 
assemble  and  petition,  ib. ;  286,  396. 
keep  and  bear  arms,  Am.  2d;  286, 

396. 
exemption  from  soldiers  in  his  house, 

Am.  3d ;  397. 
exemption       from       unreasonable 

searches  and  seizures,  Am.  4th; 

397. 
exemption   from    illegal  warrants, 

ib.;  397. 

exemption  from  trial  for  crime  un- 
less on  indictment  of  Grand  Jury, 

Am.  5th;  397. 
exemption  from  from  being  twice 

tried,  ib. ;  397. 
exemption  from  being  compelled  to 

witness  against  himself,  ib. ;  397. 
exemption  from  excessive  bail  or 

fines,  or  cruel  punishment,  Am. 

8th;  397. 

exemption  from  slavery  or  involun- 
tary servitude,   Am.  13th;    164, 

399. 
to  life,  liberty,  and  property,  unless, 

ib.;  59,397. 
compensation  for  property  taken  for 

public  use,  Am.  5th ;  397. 
trial  bv  jury  and  means  of  defence 

in  criminal  case,  Am.  6th;  145, 

397. 

and  in  civil  cases,  and  no  re-exam- 
ination but  by  common  law,  Am. 

7th;  397. 
to  equal  protection  of  law  in  every 

State,  Am.  14th,  §  1 ;  401. 
Rhode  Island,  491. 
Robinson  v.  Campbell,  389,  486. 
Bules  of  naturalization  and  bankruptcy, 

Art.  1st,  §  8,  cl.  4;  333,335. 
for  captures  by  sea  and  land,  Art. 

1,  §  8,  cl.  11";  97. 
governing  military  and  naval  forces, 

Art.  1,  §  8,  cl.  14;  350. 
of  common  law,  Am.  7th ;  387,  397. 
each  house  make  their  own,  Art.  1, 

§  5;  166. 

Rutledge,  John,  chairman  of  the  Com- 
mittee of  Detail,  34,  207,  364. 


SCAM  JESSAMIN  and  Balleyhack  Rail- 
road, 86. 
Science  and  arts,  to  promote,  Art.  1, 

§  8,  cl.  8;  82,  356. 
Scot,  Dred,  case  of,  142,  219. 
Scott,   Thomas,   of  Pennsylvania,   on 

slavery,  136. 
Security  of  liberty,  a  purpose  of  the 

Constitution,"  Enacting  Clause,  1, 

31,  133. 

under  the  guardianship  of  the  gov- 
ernment, 133. 
deliberately  abandoned,   134,   138, 

140,  143. 
persons,  houses,  papers,  &c.,  Am. 

4th;  119,  397. 
life,  liberty,  and  property,  Am.  5th; 

119,  133. 
Senate,   organized,   chosen,   qualified, 

classified,  vacancies,  Art.  1,  §  3; 

164,  247. 

term  of  service,  Art.  1,  §  3;  165. 
choose  their  own   officers,  except, 

166,  169. 
duties  in  election  of  President  and 

Vice-President,  Am.  12th;  171. 
sole  trial  of  impeachments,  Art.  1, 

§  3,  cl.  6;  167. 
judge  of  qualifications,  &c.,  of  their 

own  members,  Art.  1,  §  5;   166. 
make  their  own  rules,  punish,  or 

expel  members,  Art.  1,  §  5;  166. 
punish  for  contempt,  169,  346. 
keep  and  publish  a  journal,  Art. 

1,  §5;  166. 
take  and  record  yeas  and  nays,  in 

case,  Art.  1,  §§  5,  7;  167,  271. 
compensation  and    privilege   from 

arrest,  Art.  1,  §  6 ;  167. 
freedom  of  debate,  Art.  1,  §  6 ;  167. 
be  appointed  to  no  civil  office,  or 

hold  any  office,  except,  Art.  1, 

§  6;  Art.  2,  §  1,  cl.  2;  167. 
amend  revenue  bills,  Art.  1,  §  7; 

167. 
advisory  council  of  the  President, 

Art.  2,  §  2;  170,447,452. 
Sherman,  Roger,  118,  310. 
Ships  of  war  authorized  in  1775 ;  97. 
States  not  to  keep,  Art.  1,  §   10, 

cl.  2;  512.  x 
Slaves  and  slavery,  trade  abolished  in 

1774;  94,  98,  105,  134,  159,  187, 

207. 
destitute  of  rights,  not  citizens,  57, 

60,  159. 

for  term  of  years,  160,  162,  213. 
none  in  the  United  States  legally, 

59,  164,  187. 

history  of  the   Constitutional  pro- 
visions relating  to,  206. 
legislation  concerning,  134,  141. — 

See  "  Persons." 
cannot  be  under  legal  bonds,  163, 

164,  215. 
34 


530 


INDEX. 


Slaves   and  slavery  unconstitutional, 
136,  143,  164,  400. 

prohibited,  Am.  13th;  164. 
Soldiers  not  quartered  in  a  house,  un- 
less, Am.  3d;  397. 
South  Carolina,  32,  95,  207,  259. 
Sovereignty,  supreme,  of  the  people,  54, 
91,  93",  99. 

exercised  before  the  Declaration,  47, 
93,  98,  100. 

two  sovereignties  cannot  co-exist, 

91,  108,  111,  222. 
Spencer,  Mr.  Chief  Justice,  395. 

Mr.,  of  North  Carolina,  264. 
State  duties,  powers,  and  rights,  380, 
488,  495. 

by  the  law  of  nations,  what  is,  380, 
464,  492. 

in  the  Union  and  under  the  Consti- 
tution, what  is,  380,  464,  492. 

held  under  and  subject  to  the  Con- 
stitution, 64,  68,  186,  374,  476. 

disclaimed  by  the  Confederation,  500 

authorized  to  perform  the  duties  en- 
joined, 66,  129,  181. 

may  do  other  things  not  contrary  to 
law,  69. 

governments  of,  64, 101, 105, 144.  — 
See  "Local." 

sovereignty,  71,  111,  503. 

nine  establish  the  Constitution,  Art. 

7;  234,  490. 

States,  not  altered  to  form  new  States 
without  consent,  Art.  4,  §  3 ;  427. 

how  get  in  and  how  get  out  of  the 
Union,  373,  374,  488. 

have  representatives  chosen  bv  the 
people,  Art.  1,  §  2,cl.  1;  185",  228. 

executive  4ssue  writs  of  election,  in 
case,  ib.,  cl.  4;  156. 

have  two  senators,  chosen  bv  their 
legislature,  Art.  1,  §  3 ;  16*4,  247. 

and  not  deprived  by  alteration  of 
the  Constitution,  Art.  5;  428. 

regulate  elections,  subject  to  Con- 
gress, Art.  1,  §  4,  cl.  1 ;  238,  244, 
250,  255. 

relinquish  jurisdiction  over  portions 
of  their  territory,  Art.  1,  §  8,  cl. 
17;  358. 

admit  migration  or  importation  of 
persons  till  1808,  Art.  1,  §  9,  cl. 
1;  414. 

appoint  electors  to  vote  for  Presi- 
dent by  ballot,  Art.  2,  §  1,  Am. 
12th,  14th;  413. 

give  faith  and  credit  to  acts,  records, 
&c.,  of  other  States,  Art.  4,  §  1 ; 
371. 

deliver  up  fugitives  from  justice, 
Art.  4,  §2,  cl.  2;  187. 

claims  to  territory  not  disparaged, 
Art.  4,  §  3,  cl.  2;  230,382. 

have  a  republican  government,  Art. 
4,  §  4;  221,224,227,229. 


States,  have  protection  against  invasion 

and  violence,  Art.  4,  §  4 ;  229. 
have  a  voice  in  the  ratification  of 

amendments,  Art.  5 ;  390. 
judges  bound  by  the  supreme  law, 

Art.  6,  §  2 ;   186. 
officers  under  oath  to  support  the 

Constitution,  Art.   6,   §   3;   186, 

191. 
sue  and  sued  by  other  or  foreign. 

States  in  the  Supreme  Court,  Art. 

3,  §2;   464. 
not  sued  by  citizens  of  other  or 

foreign  States,  Am.  llth;  398. 
State  disabilities  and  restrictions,  145, 

505,  515. 

under  the  Confederation,  501. 
from    making   treaty,   alliance,   or 

confederation,  Art.  1,  §  10,  cl.  1 ; 

503. 
any  agreement    or    compact  with, 

another  or  foreign  State,  ib.,  cl. 

2;  503. 

granting  letters  of  marque  or  re- 
prisal, Art.  1,  §  10,  cl.  1 ;  505. 
coining  money,  emitting  bills,  or 

making  tender,  unless  of  gold  or 

silver  coin,  ib.,  189,  505. 
passing  attainder,  or  ex  post  facto 
•  laws,  or  impairing  contracts,  ib., 

419,  508,  511. 
granting  any  title  of  nobility,  Art. 

1,  §§  9,  10;  511. 
laying  duties  on  imports,  exports, 

or  tonnage,  unless,  Art.  1,  §  10, 

cl.  2;  512. 
keeping  troops  or  ships  of  war  in 

peace,  or  making  war,  ib. ;  512. 
discharging  fugitives  from    labor, 

Art.  4,  §  2,  cl.  3;  187. 
suspending  habeas  corpus,  or  doing 

what  the  Constitution  prohibits 

being  done,  Art.  1,  §  9,  and  all 

the  Amendments,  512. 
abridging  privileges  of  citizens,  or 

protection  of  the  laws,  Am.  14th, 

§  1;  401. 

abridging  the  right  to  vote  for  cer- 
tain officers,  Am.  14th,  §  2 ;  401. 
paying  any  debt  incurred  for  rebel- 
lion or  emancipation,  Am.  14th, 

§  4;  401. 
Story,  Mr.  Justice,  40,  86,  107,   125, 

131,  144,  218,  224,  308,  315,  336, 

419,  450,  458,  481. 
Sturgis  v.  Crowningshield,  146. 
Suffrage,  a  right  of  citizenship,  59, 154, 

185,  222,  225,  241,  246,  404. 
regulation   of,  necessary  to  secure 

republicanism,  246. 
the  foundation  of  liberty,  224,  404. 
Supreme  Court  established,  Art.  3,  §  1 ; 

184,  455. 
cited,  142,  239,  247,  248,  351,  431, 

360,  389. 


INDEX. 


531 


Supreme  Court,  judicial  power  vested 

in,  Art.  3,  §1;  456 
original  jurisdiction  of,  Art.  3,  §  2, 

cl.  2;  468. 
appellate  jurisdiction  in  all  other 

cases,  ib. ;  469. 
law  of  the  land,  Art.  6,  §  2;  39,  72, 

186,  232,  248. 
State  judges  bound  by,  and  officers 

on  oath  to,  Art.  6,  §§  2,  3 ;  232. 


TANEY,  Mr.  Chief  Justice,  184,  199, 

396. 
Taxes,  duties,  imposts,  and  excises,  by 

Congress,  Art.  1,  §  8,  cl.  1 ;  40, 

81,  290. 
capitation  and  direct,  apportioned 

on  the  census,  Art.  1,  §  9,  cl.  4 ; 

182,  411. 

indirect,  as  duties,  imposts,  and  ex- 
cises, to  be  uniform,  Art.  1,  §   8, 

cl.  1;  41,  119,290,316. 
on  exports  from  a  State  prohibited, 

Art.  1,  §  9,  cl   5;  208,412. 
not  restricted  to  revenue,  291. 
Taxing  power,  qualification  of,  208, 290, 

236,  291,  304,  411. 
Terrett  v.  Taylor,  180. 
Territory  or  property  of  United  States 

disposed  of,  or  regulated,  Art.  4,  § 

3,  cl.  2;  230,378,382. 
State  claims  to,  not  prejudiced,  ib. ; 

382. 
Test,  religious,  not  required,  Art.  6,  §  3 ; 

285,  429. 
Texas  became  a  State  in  the  Union, 

333,  448. 

Times  of  election,  250. 
Title  of  nobilitv,  none  by  State  or  na- 
tion, Art.  I,  §§  9,  10;  285,  427. 
present,  office,  &c.,  not  accepted  by 

an  officer,  from  a  foreign  State, 

Art.  1,  §9;  427. 
Trade  regulated  in  1774;   50,  93,  98, 

208. 

in  slaves  m  1774,  abolished,  94,  98. 
Tranquillity,  domestic,  a  purpose  of  the 

Constitution,  Enacting  Clause,  1, 

90,  116. 

Iason,   felony,   &c.,   not   privileged 
from  arrest,  Art.  1,  §  6;  167. 
persons  charged  with,  delivered  up, 
Art.  4,  §2,  cl.  2;  208. 
bribery,  &c.,  officers  removed  for,  on 
impeachment,  Art.  2,  §   4,  168, 
434. 
defined,  requires  two  witnesses  or 
confession  for  conviction,  Art.  3, 
§3;  513. 
Congress  declare  the  punishment  of, 
Art.  3,  §3,  cl.  2;  370,423. 
no  attainder  of.  to  work  after  trai- 
tor's death,  ib. ;  423. 


Treasury,  appropriations  from,  made 

by  law,  Art.  1,  §  9,  cl.  6 ;  426. 
Treaties,  part  of  the  supreme  law,  Art. 

6,  §2;  448. 
how  made,  Art.  2,  §  2,  cl.  2 ;  170, 

447. 

leagues,  or  confederations,  37,  107. 
Treaty-making  power,  333,  447,  450. 
Trials,  criminal,  by  jury,  except,  Art. 

3,  §  2;  397. 

in  the  State,  or  where  Congress  ap- 
point, Art.  3,  §  2,  cl.  3;  Am.  6th; 
397. 
in  suits  at  common  law  by  jury,  Am. 

7th;  388,397. 

re-examined  only  according  to  com- 
mon law,  ib. ;  388. 

Tucker,  of  South  Carolina,  on  slavery, 
137. 


UNIFORMITY,  rule  of,  Art.  1,  §  8,  cl.  1 ; 

41,  119,  290,  312,  316,  411. 
Union,  more  perfect,  a  purpose  of  the 
Constitution,  Enacting  Clause,  1, 
90,  107,  104. 
parties  to,  the  people,  not   States, 

Enacting  Clause,  1,  93,  109. 
in  distinction  from  league  or  con- 
federation, 107,  110. 
how  States  get  in,  and  how  States 

get  out  of,  the,  374. 
United  Colonies,  50,  53,  93. 
United   States,   the   nation,   corporate 
name,    and    country,    Enacting 
Clause,  1,  63. 

same  name  in  the  Declaration,  63. 
y.  Coolidge,  483. 

Units  or  fractions,  free  persons  and  oth- 
ers, Art.  1,  §  2,  cl.  3;  60,  412. 
Unity,  nationality,  48. 
dilapidation  of,  91,  99. 
retracted,  111. 

of  the  executive  department,  Art.  2, 
§  1,  cl.  1;  430,438. 


VACANCIES  in  the  House,  Art.  1,  §  2, 

cl.  4;  156. 

in  the  Senate,  Art.  1,§  3,  cl.  2;  165. 
in  the  executive,  Art.  2,  §  1,  cl.  6 ; 

368. 
in  other  offices,  Art.  2,  §  2,  cl.  3; 

453. 

Vattel  on  sovereignty,  47,  441. 
Veto  of  the  President,  Art.  1,  §  7;  172. 
how  overruled,  Art.  1,  §  7 ;  173, 271. 
to  what  it  does  not  apply,  173. 
Vice-President  presides  in  the  Senate, 
no  vote  unless,  Art.  1,  §  3,  cl.  4; 
434. 
liable  to  impeachment,  Art.  2,  §  4 ; 

434. 

how  chosen,   qualified,  term,  &c., 
Art.  2;  Am.  12th,  14th;  431. 


532 


INDEX. 


Vice  President,  powers  and  duties  of 
President,  in  case,  Art.  2,  §  1,  cl. 
6;  368,  432 

Virginia,  plan  of  government,  32,  91, 
95,  206,  491. 

Voters,  qualifications  of,  citizenship  and 
residence,  Art.  1,  §  2;  151,  153, 
227,  256,  261,  405. 

Voting  by  States  originated,  a  confed- 
eration measure,  99. 


WAR,  power  to  declare,  Art.  1,  §  8,  cl. 

11;  123,  345,  349,  449. 
may  exist  without,  339,  351. 
rights  and  duties  involved  in,  150, 

350. 

martial  law,  152,  352,  417. 
States  not  to  engage  in,  or  keep 
ships  of,  in  time  of  peace,  Art.  1, 
§  10,  cl.  2;  512. 
Warrants,   how  issued,   searches   and 

seizures,  Am.  4th;  397. 
Washington,       commander  -  in  -  chief, 

1775;  97. 
cited,  77. 

We,  the  people,  Enacting  Clause,  1, 31, 
47, 109. 


We,  the  people,  only  sovereignty,  48, 

222,  225. 

their  nationality,  35,  48,  49. 
who  are  the  people,  49,  53. 
the  successors  of  the  imperial  gov- 
ernment, 51. 

Webster,  Daniel,  27,  139,  241,  338. 
Weights  and  measures,  Art.  1,  §  8,  cl. 

3;  340,343. 

Welfare,  general,  a  purpose  of  the  Con- 
stitution, Enacting  Clause,  1,  31, 
312. 

a  power  of  Congress,  Art.  1,  §  8, 
cl.  1;  40,  126,  130,  291,  295,  310, 
317,  426. 

Weston  v.  Charleston,  292. 
Wilkinson  v.  Leland,  180. 
Wilson,  Mr.  Justice,  104,  105, 106,  267. 
Witness  in  case  of  treason,  Art.  3,  §  3 ; 

513. 
against  himself  in  a  criminal  case, 

Am.  5th;  397,514. 

Women  and  children,  their  right  of 
suffrage,  226. 

YATES,  Senator,  on  suffrage,  154. 
Yeas  and  nays,  Art.  1,  §  5 ;  167. 

on  President's  veto,  Art.  1,  §  7 ;  271. 


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